NLRB Issues Further Social Media Guidance

Posted by Jeffrey P. Mogan on February 06, 2012

In follow up to our previous post (May 9, 2011) regarding the National Labor Relations Board’s (“NLRB”) treatment of social media, the NLRB released further guidance in an effort to assist employers in evaluating the legality of social media policies and practices.  The NLRB’s social media report analyzes 14 cases, involving both social media policies and employee discharge for posting comments to Facebook.  The cases covered provide examples of both lawful and unlawful policies and conduct.  The NLRB released a similar compilation of cases in 2011, making clear that there has been no shortage of alleged violations of the National Labor Relations Act (“NLRA”) stemming from the realm of social media. 

According to the NLRB, the report underscores two main points:

  1. Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal law, such as the discussion of wages or working conditions among employees; and
  2. An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees. 

The NLRB continues to track and evaluate all cases involving social media and this will undoubtedly continue to be a hot topic for the foreseeable future.  Employers are advised to consider the NLRB’s new guidance and to ensure that their social media policies and practices are in accordance with the law.

If you have any questions, please contact Berchem, Moses & Devlin.

Employers with Mandatory Arbitration Agreements Advised to Review Their Policies

Posted by Jeffrey P. Mogan on January 31, 2012

If you are an employer that maintains a mandatory arbitration agreement that waives the rights of employees to participate in class or collective actions, your arbitration agreement may be in violation of the National Labor Relations Act (“NLRA”).

Pursuant to the National Labor Relations Board’s (“NLRB”) recent decision in D.R. Horton, Inc., 357 NLRB. No. 184 (2012), a case of first impression for the NRLB, “mutual arbitration agreements” that preclude the arbitrator from hearing class or collective actions violate Section 8(a)(1) of the NLRA.  The NLRB determined, despite Supreme Court decisions that many believed held otherwise, that such arbitration agreements “clearly and expressly bar employees from exercising substantive rights that have long been held protected by Section 7 of the NLRA.” 

Prior to the case, the position of former NLRB General Counsel Ronald Meisburg was that class action waivers were not unlawful so long as the waiver provided that employees could act together to challenge the waiver itself. 

However, with the NLRB’s decision in D.R. Horton, Inc., the new rule for employers is clear – employers may not compel employees to waive the ability to collectively pursue litigation of employment claims in all forums, arbitral and judicial.  Instead, while arbitration agreements may continue to bar employees from classwide arbitration, they may not also prohibit employees from a judicial forum for class and collective claims.

Employers favor mandatory arbitration provisions in employment agreements because arbitration is generally quicker and less expensive than court litigation.  However, if the mandatory arbitration provision prohibits employees from pursuing class or collective actions in all forums, the employer should revise the policy in light of recent legal developments.

For more information, please contact the law offices of Berchem, Moses & Devlin, P.C. 

Upcoming Labor/ Employment Law Seminar

Posted by Jeffrey P. Mogan on October 28, 2011

Attorney Jeffrey Mogan will be presenting a seminar entitled “A Legal Roadmap to Operating Efficiently in Unionized Health Care Facilities” at the Connecticut Association of Health Care Facilities (CAHCF) annual Educational Conference on November 9, 2011 in Cromwell.  Discussion topics include key provisions of the National Labor Relations Act and avoiding common pitfalls of employee discipline in a union workplace.  Additional information on the conference can be found on the CAHCF website.

NLRB Postpones New Posting Requirement

Posted by Jeffrey P. Mogan on October 11, 2011

In follow up to our previous post on April 13, 2011, the proposed rule to require employers covered by the National Labor Relations Act (“NLRA”) to post workplace notices describing employees' rights under the NLRA has been delayed into 2012.  The stated purpose of the proposed rule is to inform employees of their rights to form, join, or assist labor organizations, to bargain collectively, and to act together to attempt to improve their working conditions, or to choose not to do any of these things, as well as to inform employees of where to seek help in understanding those rights.

The rule was to go into effect in November 2011 but just last week the NLRB announced that implementation of the rule has been postponed until January 31, 2012.  According to the NLRB’s announcement of the postponement, the “decision to extend the rollout period followed queries from businesses and trade organizations indicating uncertainty about which businesses fall under the [National Labor Relations] Board’s jurisdiction, and was made in the interest of ensuring broad voluntary compliance.”  As discussed in our previous post, an employer’s failure to post the notice carries a variety of sanctions.  Employers subject to the NLRB ‘s jurisdiction should stay tuned for further updates concerning the status of the posting requirement. 

NLRB Proposes Controversial Changes to Election Process

Posted by Jeffrey P. Mogan on July 20, 2011

The National Labor Relations Board recently proposed changes to its pre-election and post-election procedures that would significantly impact employers and could result in a greater number of successful union elections.  Most notably, the reform would require that the pre-election hearing be held within 7 days after the hearing notice is served (absent special circumstances).  Currently, employers can expect at least 30 days following a union election petition in order to express its views on whether employees should vote for the union prior to the election.  Opponents of the rule argue that unions generally campaign long before a petition is filed, and that providing the employer with such a short window to express its views unfairly stacks the deck in the union’s favor.

Additional amendments include:

  • Deferring litigation of most voter eligibility issues until after the election;
  • Making Board review of post-election decisions discretionary rather than mandatory; and
  • Providing less time for employers to provide the NLRB with a list of eligible voters, lists that would be required to include employee phone numbers and e-mail addresses.

A side-by-side comparison of the current election procedures versus the proposed election procedures can be found on the NLRB’s website. 

The proposed reform was sharply contested by Member Hayes, who drafted a dissent critical of both the alleged need for change and the specific amendments proposed.  According to Member Hayes, the election reform would implement the type of “quickie election” that has long been sought by unions out of a desire to “effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining.” 

The NLRB held public hearings on the proposed reform on July 18 and 19, and many in the business community opposed the changes. Public comments can be submitted in writing or electronically through www.regulations.gov until August 22, 2011.  If the reform is implemented, employers can expect to be required to comply with the new rules before the end of 2011.

Employee's Twitter Comments Trigger NLRB Complaint

Posted by Jeffrey P. Mogan on May 09, 2011

On the heels of the well publicized settlement this past February between the Hartford office of the National Labor Relations Board (“NLRB”) and AMR of Connecticut resulting from the NLRB’s complaint that the employer unlawfully terminated an employee in response to the employee’s criticism of her supervisor on Facebook, another social media issue has caught the attention of a nearby NLRB regional office. 

Specifically, the New York NLRB regional office (Region 2) has stated its intent to issue a complaint, absent settlement, against Thomson Reuters based upon the employer’s allegedly overbroad policy that restricts employees from making statements disparaging the company.  It appears that the employer’s policy came to light after the employer invited employees to post suggestions on its Twitter account about how to make Reuters a better place to work.  In response, one employee tweeted that the company should “deal honestly” with union employees.  Soon thereafter, the employee was contacted at home by her supervisor and advised of the company’s policy prohibiting employees from making statements that would damage the company’s reputation.  Reuters denies that it disciplined the employee in response to her Tweet, but the employee claimed that she felt threatened and intimidated by the employer’s response.

The overarching issue runs deeper than social media policies and extends to any employment policies that could be interpreted to restrict the right of employees to engage in concerted, protected activity under Section 7 of the National Labor Relations Act.  While the case law in this area continues to develop, the bottom line is that employers, now more than ever, must exercise caution in creating and enforcing policies that restrict an employee’s ability to engage in activities such as discussing or complaining about working conditions, the company, or management personnel.  Even policies created with the simple intent to promote a positive work environment, for instance by requiring employees to act civil and demonstrate respect for one another, have been called into question by the NLRB on the theory that protected activity is not always civil and to require such could chill union activity.  What may seem to an employer at first glance to be a standard employment requirement, not intended to inhibit union activity, may be deemed unlawful.    

NLRB Reform Agenda Will Put Employers' Union Avoidance Strategies to the Test

Posted by Michelle Devlin Long on April 13, 2011

Recent developments following the National Labor Relations Board (NLRB) election results indicate that the NLRB will affect sweeping changes in 2011 making union organizing easier and compliance more onerous and expensive for employers. Employers face greater enforcement mechanisms, modifications to agency policies and procedures, and additional regulatory requirements under certain initiatives implemented and under consideration.

For instance, the NLRB issued a Notice of Proposed Rulemaking which was published in the Federal Register on December 22, 2010. If adopted, the rule requires employers to post in the workplace notices describing employees' rights under the National Labor Relations Act (NLRA), including, but not limited to, the right to organize a union, engage in collective bargaining, and conduct other forms of group-oriented activity (such as strikes and picketing). The stated purpose of the proposed rule is to inform employees of their rights to form, join, or assist labor organizations, to bargain collectively, and to act together to attempt to improve their working conditions, or to choose not to do any of these things, as well as to inform employees of where to seek help in understanding those rights.

Under this proposed rule, all employers covered by the NLRA would be required to physically post and maintain the notice in a conspicuous location, "including all places where notices to employees are customarily posted". Employers that customarily communicate with their employees by electronic means are additionally required to disseminate the notice by email or by posting the notice on the company's website. If a significant number of employees are not proficient in English, then the employer must provide the notice in the employees' language.

Employers that fail to post the notice would be subject to the following sanctions:

(1) finding the failure to post the required notices to be an unfair labor practice (an NLRA violation);

(2) tolling the statute of limitations for filing unfair labor practice charges; and

(3) considering the failure to post the notices as evidence of unlawful motive in future unfair labor practice cases.

Although similar notices are required by other federal workplace laws (e.g., ADA, FLSA, ADEA and FMLA), the proposed NLRA notice is different in that the NLRA notice would contain not only a summary of the law, but actual examples of employer conduct that violates the NLRA. The sole dissenting Board member, Brian E. Hayes, questioned whether the NLRB has the authority to promulgate or enforce the notice posting rule.

This proposal is one of many NLRB initiatives that will substantially impact labor relations for employers in 2011 and beyond so check back as this is a hot topic and there will be more posts to come."