Category: National Labor Relations Act (NLRA)
Worklaw® Network firm Shawe Rosenthal recently reported one more ridiculous decision by the NLRB (I wonder what their workplace must be like given their approach to work). No surprise, what most of us would think is a decent rule…really isn’t! Fact is, it is getting ever harder to draft workplace conduct rules…even for the lawyers. Of course by the time some of these decisions make it around to the Federal Court system they are often overturned. Do they really think that employees consider these rules before deciding on whether to raise legitimate concerns about work conditions? Is “disruption” really necessary to voice one’s concerns? In this wishy-washy decision the ALJ stated “Because the Employer’s prohibition does not define or limit the meaning of “disruption” or state that it is not intended to refer to Section 7 activity, I find that employees would reasonably interpret it to outlaw some such activity.” There was no evidence presented at all that it in fact had such a chilling effect! Lastly, it is clear the NLRB does not want employers talking employees out of unionization efforts because of the financial impact it may have on the company. Better to pretend there is no real impact and who cares if it makes a thin margin business impossible to run after being unionized. While in the end the company and its employees may lose, the union and its officers will call it a win…at least for them.
It is clear that the union and Purple Communications have been at odds. The current case emanates from a unionization effort in California. You will note that the branches of the company targeted had 30 and 47 employees. For example see http://mediaworkers.org/asl-interpreters-at-purple-begin-fight-for-a-fair-contract/
NLRA and Work Rules
October 30, 2013
In the latest decision addressing the limits on employer work rules, an Administrative Law Judge (ALJ) ruled that a policy prohibiting employees from “[c]ausing, creating, or participating in a disruption of any kind during working hours on Company property” was overly broad and interfered with employees’ Section 7 rights to engage in protected concerted activity under the National Labor Relations Act (NLRA). In Purple Communications, Inc. and Communications Workers of America, AFL-CIO, the ALJ found that the reference to “disruptions” was so general that it could cover protected activity. In addition, the reference to “working hours” was different from a potentially lawful reference to “working time,” since working time is specific to each employee, while working hours could refer to all hours of operation for the employer, which would include employees’ own non-working time, such as meal periods and other breaks. Also, the use of “causing” and “creating” suggested that employees might be disciplined for engaging in protected activities away from the workplace and during non-working time, if those activities were then linked to a workplace disruption. This case further illustrates the heightened and extra-sensitive focus the NLRB is bringing to the specific language of workplace policies.
The National Labor Relations Board (NLRB) announced the launch of a new mobile app, available free of charge for iPhone and Android users. The app provides employers, employees and unions with information regarding their rights and obligations under the National Labor Relations Act.
“The National Labor Relations Act guarantees the right of workers to join together, with or without a union, to improve their working lives,” notes NLRB Chairman Mark Gaston Pearce. “The promise of the law can only be fulfilled when employers and employees understand their rights and obligations. With this app, we are using 21st Century technology to inform and educate the public about the law and their rights.”
Last year, the NLRB received more than 82,000 public inquiries regarding workplace issues. “It is clear that the American people have questions about the law,” Pearce said. “This app can help provide the answers.”
The app provides information for employers, employees and unions, with sections describing the rights enforced by the National Labor Relations Board, along with contact information for NLRB regional offices across the country. The app also details the process the NLRB uses in elections held to determine whether employees wish to be collectively represented. Chances are if you are an employer you want to be familiar with this program. I just downloaded it to my iPhone.
Each month, an average of 2,000 unfair labor practice charges and 200 representation petitions are filed with the NLRB. In 2012, the NLRB collected more than $44 million in backpay or the reimbursement of fees, dues and fines. More than 1,200 employees were offered reinstatement as a result of NLRB enforcement efforts.
While much is being made about the NLRB aggressively enforcing Section 7 and 8 employee rights, the fact is the California Labor Code, and maybe that your state as well, carries similar provisions:
232. No employer may do any of the following:
(a) Require, as a condition of employment, that an employee refrain from disclosing the amount of his or her wages.
(b) Require an employee to sign a waiver or other document that purports to deny the employee the right to disclose the amount of his or her wages.
(c) Discharge, formally discipline, or otherwise discriminate against an employee who discloses the amount of his or her wages.
232.5. No employer may do any of the following:
(a) Require, as a condition of employment, that an employee refrain from disclosing information about the employer’s working conditions.
(b) Require an employee to sign a waiver or other document that purports to deny the employee the right to disclose information about the employer’s working conditions.
(c) Discharge, formally discipline, or otherwise discriminate against an employee who discloses information about the employer’s working conditions.
(d) This section is not intended to permit an employee to disclose proprietary information, trade secret information, or information that is otherwise subject to a legal privilege without the consent of his or her employer.
Bottom line: If an employee complains about working conditions talk to a lawyer before you reprimand or fire them!
Where they complain:
Most job-related rants are posted where employees statistically spend most of their time on the internet: Twitter, Facebook, LinkedIn, and other popular social networking sites. However, disgruntled employees also use increasingly popular job venting websites such as jobitorial.com, jobvent.com, glassdoor.com, disgruntled.com, and Australia’s nakedoffice.com. The majority of cases involving employees ranting about their employers involve employee tweets or Facebook posts.
What they complain about:
Employees complain about a wide variety of issues from working conditions such as having coffee and tea available to lunch breaks and promotion opportunities. The number one area where employees seek change is having higher salaries. Employers should create an environment where employees feel comfortable discussing salary. Remember, as mentioned below, the NLRB also protects them in that conversation-even if they do so in a public forum. Other hot topics include benefits programs (health and dental insurance, retirement programs, paid time off/vacation), over-management (too many coaches, not enough players), and pay increases based on performance rather than all employees receiving a raise no matter how they produce for the employer. Employees want to be rewarded for their production.
First Amendment/NLRA issues – what is/is not protected
A social media policy raises First Amendment free speech issues. For example, if the employer is a state actor, the comments may be afforded First Amendment protection. For private employers, the National Labor Relations Board (NLRB) has determined that certain online employee communications concerning their employer may be subject to the protections of the National Labor Relations Act (NLRA), even if the workplace is not represented by a union. Some states restrict employers from attempting to control the after-hours activities or conduct of their employees.
The NLRB has reported recently that in order to be a protected concerted activity, the employee’s online discussion must involve or affect a group of employees, not an individual worker. The latest NLRB report underscored two main points: Employer policies shouldn’t be so broad that they prohibit protected activity; and “mere gripes” usually aren’t protected if they’re not made in relation to group activity among employees. In one case, a restaurant fired two employees who had a Facebook conversation with a former employee about the restaurant’s tax withholding practices. The NLRB found that the firings were illegal, because the employees were engaging in protected concerted activity. The NLRB also found the restaurant’s Internet and blogging policy, which prohibited “inappropriate discussions,” was too broad and vague to be legal. However, in another case, the NLRB ruled that a newspaper could legally fire an employee who posted “unprofessional and inappropriate tweets” to a work-related Twitter account. In that case, the reporter used the Twitter account to criticize coworkers. The complaints were not concerted but instead involved the gripes of an individual employee. It did not involve his employment or involve employees in issues related to employment. Therefore, the posts were not protected.
With the above in mind, employers should consider the following:
- Create a system where employees can vent and discuss their frustrations in a private location in the office to avoid online public rants. Give them a safe place to voice their opinions in a constructive way. Listen to employees and make appropriate changes accordingly.
- Develop a social media policy consistent with the law that will establish clear and lawful parameters for the use of social media in the workplace. Avoid vague language such as “inappropriate language is prohibited”. Define what “inappropriate language” is. The policy should clearly state that the employer has the right to monitor the use of social media by employees. The employer should include language in the employees’ contract that outlines exactly the kind of online behavior that could lead to their dismissal. Be specific. See the NLRB approved Sample Social Media Policy on HR That Works.
- Identify the line between protected and unprotected speech and update the social media policies accordingly. While an individual online rant by one employee is generally not protected, discussions involving employment issues related to multiple employees generally is protected by the NLRA.
- Small business owners can sign up for Google Alerts so they know when their company is being talked about on the Web. SocialMention.com works the same as Google Alerts but scours social media sites for mention of the company. However, employers should think twice about patrolling the Internet in search of employees badmouthing the company. Such an action could be considered “surveillance” under the NLRA, which could be illegal. (Of course, getting caught is another thing).
Recently, the National Labor Relations Board issued its first binding decision about employees’ rights under a common social media policy. In a recent case involving Costco Wholesale Corporation, the NLRB ruled that Costco’s online communications policy violated employees’ Section 7 rights under the National Labor Relations Act (NLRA). Please click here to read the article in its entirety.
In a 2-1 decision, the National Labor Relations Board in the case of Banner Health System v. James Navarro, ruled that an employer violated the National Labor Relations Act by asking the employee not to discuss the details of his complaint with other employees while it was under investigation. The NLRB ruled that the company’s generalized concern with protecting the integrity of its investigation was insufficient to outweigh the employee’s Section 7 rights, which allows the employee to engage in concerted activities for their mutual aid and protection. The Board did indicate that there were circumstances where a request for confidentiality may be legitimate, including:
- Where witnesses may need protection
- Where evidence is in danger of being destroyed
- Where testimony is in danger of being fabricated
- Where the is a need to prevent a cover-up
It made no difference to the court whether or not the “rule” was merely a suggestion or whether it had the potential of discipline attached to it. Simply requesting the confidentiality was enough to violate the Act.
As one of its penalties, the company was required to post the following notice:
Note: The Board also reminded employers that companies cannot restrict information such as salaries, disciplinary action, etc. without also violating Section 7. Employers are also advised to document and analyze why it may need to request confidentiality in any investigation. Finally, there is a possibility that this determination by the NLRB can be reversed by one of the circuit courts, or if things change after the November election.
Banner Health System d/b/a Banner Estrella Medical Center (28‑CA‑023438, 358 NLRB No. 93) Phoenix, AR, July 30, 2012.
Here is a link to a memo from the Worklaw® Network firm Elarbee Thompson which should scare the bejesus out of any non-union employer. The current administration is clearly attempting to restructure the workplace. What it was not able to do by legislation it is now attempting to do through administrative fiat. We’ll have to see how the circuit courts respond to any claims filed. Until then it is employer beware!
The NLRB did it again. One has to wonder if these folks have ever had to run a business. You will note that many of the policies deemed illegal were drafted by high-end counsel at major corporations who are undoubtedly aware of employee’s NLRA Section 7 and 8 rights. But what do they know? The NLRB is undercutting every level of decency corporations try to establish. It clearly has nothing to do with common sense or “real” workers’ rights, it’s simply a political football. Read it yourself and tell me you don’t feel that way too. Call your boss an asshole, trash the company brand, disclose confidential info, get fired for it and the NLRB will put you back to work! Really? And this is what we pay taxes to a broke government for?
P.S. Of course, this is my opinion only. While it may be shared by many, it is not shared by all. Here’s a fact – I represented employees in litigation for 17 years of a short life, so I don’t want to hear about supporting some right wing agenda. I’m a pragmatist and this is flat out nonsense. You will also note they don’t add the facts or names of these cases because the actual conduct of the employees involved would be hard for most to stomach.
If the social media policy does not explicitly restrict protected activities, it will only violate Section 8(a)(1) upon a showing that: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.
Rules that are ambiguous as to their application to Section 7 activity, and contain no limiting language or context that would clarify to employees that the rule does not restrict Section 7 rights, are unlawful (which is where most of these policies fail). In contrast, rules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they would not reasonably be construed to cover protected activity, are not unlawful.
Reality is, none of these employees ever studies these rules or even thinks about them before they engage in their “protected” conduct. But because of the remote chance it may actually “chill” conduct, decency goes out the window.
Given the above guidelines, the NRLB found plenty of polices wanting. Rather than waste your time summarizing all the things you can’t do I’ll focus on identifying what they said you can do. If you want to make yourself feel ill you can read the entire memo at http://www.nlrb.gov/news/acting-general-counsel-releases-report-employer-social-media-policies I have given up on trying to modify our policy for the umpteenth time. To be on the 100% safe side you can simply use the sample policy that the NLRB said is OK below.
Last note: It has been my approach to involve employees in creating these policies so they can be “self-enforced” and not viewed as some top down control document. Since the end result of such a common sense approach may in fact violate NLRB guidelines, the safest best is to go with their sample policy.
Sample Social Media Policy
At [Employer], we understand that social media can be a fun and rewarding way to share your life and opinions with family, friends and co-workers around the world. However, use of social media also presents certain risks and carries with it certain responsibilities. To assist you in making responsible decisions about your use of social media, we have established these guidelines for appropriate use of social media.
This policy applies to all associates who work for [Employer], or one of its subsidiary companies in the United States ([Employer]). Managers and supervisors should use the supplemental Social Media Management Guidelines for additional guidance in administering the policy.
In the rapidly expanding world of electronic communication, social media can mean many things. Social media includes all means of communicating or posting information or content of any sort on the Internet, including to your own or someone else’s web log or blog, journal or diary, personal web site, social networking or affinity web site, web bulletin board or a chat room, whether or not associated or affiliated with [Employer], as well as any other form of electronic communication.
The same principles and guidelines found in [Employer] policies and three basic beliefs apply to your activities online. Ultimately, you are solely responsible for what you post online. Before creating online content, consider some of the risks and rewards that are involved. Keep in mind that any of your conduct that adversely affects your job performance, the performance of fellow associates or otherwise adversely affects members, customers, suppliers, people who work on behalf of [Employer] or [Employer’s] legitimate business interests may result in disciplinary action up to and including termination.
Know and follow the rules
Carefully read these guidelines, the [Employer] Statement of Ethics Policy, the [Employer] Information Policy and the Discrimination & Harassment Prevention Policy, and ensure your postings are consistent with these policies. Inappropriate postings that may include discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct will not be tolerated and may subject you to disciplinary action up to and including termination.
Always be fair and courteous to fellow associates, customers, members, suppliers or people who work on behalf of [Employer]. Also, keep in mind that you are more likely to resolved work-related complaints by speaking directly with your co-workers or by utilizing our Open Door Policy than by posting complaints to a social media outlet. Nevertheless, if you decide to post complaints or criticism, avoid using statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage customers, members, associates or suppliers, or that might constitute harassment or bullying. Examples of such conduct might include offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.
Be honest and accurate
Make sure you are always honest and accurate when posting information or news, and if you make a mistake, correct it quickly. Be open about any previous posts you have altered.
Remember that the Internet archives almost everything; therefore, even deleted postings can be searched. Never post any information or rumors that you know to be false about [Employer], fellow associates, members, customers, suppliers, people working on behalf of [Employer] or competitors.
Post only appropriate and respectful content
- Maintain the confidentiality of [Employer] trade secrets and private or confidential information. Trades secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications.
- Respect financial disclosure laws. It is illegal to communicate or give a “tip” on inside information to others so that they may buy or sell stocks or securities. Such online conduct may also violate the Insider Trading Policy.
- Do not create a link from your blog, website or other social networking site to a [Employer] website without identifying yourself as a [Employer] associate.
- Express only your personal opinions. Never represent yourself as a spokesperson for [Employer]. If [Employer] is a subject of the content you are creating, be clear and open about the fact that you are an associate and make it clear that your views do not represent those of [Employer], fellow associates, members, customers, suppliers or people working on behalf of [Employer]. If you do publish a blog or post online related to the work you do or subjects associated with [Employer], make it clear that you are not speaking on behalf of [Employer]. It is best to include a disclaimer such as “The postings on this site are my own and do not necessarily reflect the views of [Employer].”
Using social media at work
Refrain from using social media while on work time or on equipment we provide, unless it is work-related as authorized by your manager or consistent with the Company Equipment Policy.
Do not use [Employer] email addresses to register on social networks, blogs or other online tools utilized for personal use.
Retaliation is prohibited
[Employer] prohibits taking negative action against any associate for reporting a possible deviation from this policy or for cooperating in an investigation. Any associate who retaliates against another associate for reporting a possible deviation from this policy or for cooperating in an investigation will be subject to disciplinary action, up to and including termination.
Develop a healthy suspicion. Don’t let anyone trick you into disclosing confidential information. Be suspicious if asked to ignore identification procedures.
Associates should not speak to the media on [Employer’s] behalf without contacting the Corporate Affairs Department. All media inquiries should be directed to them.
For more information
If you have questions or need further guidance, please contact your HR representative.
According to the NLRB memo here are some more “OK” provisions:
- Confidentiality re information directly or indirectly related to the safety performance of [Employer] systems or components for vehicles;
- Confidentiality re [Employer] Secret, Confidential or Attorney-Client Privileged information;
- “harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between co-workers online, even if it is done after hours, from home and on home computers.”
- “statements which are slanderous or detrimental to the company” that appeared on a list of prohibited conduct including “sexual or racial harassment” and “sabotage”
- No unauthorized postings: Users may not post anything on the Internet in the name of [Employer] or in a manner that could reasonably be attributed to [Employer] without prior written authorization from the President or the President’s designated agent.
- A prohibition on representing “any opinion or statement as the policy or view of the [Employer] or of any individual in their capacity as an employee or otherwise on behalf of [Employer].”
In response to a District Court decision issued late Monday, the National Labor Relations Board has temporarily suspended the implementation of changes to its representation case process, which had taken effect April 30.
Board Chairman Mark Gaston Pearce said the Board is reviewing the court decision and considering its response. “We continue to believe that the amendments represent a significant improvement in our process and serve the public interest by eliminating unnecessary litigation,” he said. “We are determined to move forward.”
Acting General Counsel Lafe Solomon today withdrew the guidance to regional offices he issued prior to the effective date and advised regional directors to revert to their previous practices for election petitions starting today.
About 150 election petitions were filed under the new procedures. Many of those petitions resulted in election agreements, while several have gone to hearing. All parties involved in the 150 cases will be contacted and given the opportunity to continue processing the case from its current posture rather than re-initiating the case under the prior procedure.
Click here for website version.
The above entry is the May 15, 2012 NLRB News Release.