NLRB: Employer’s Overbroad Social Media Policy Violates Employees’ Rights

In its first decision involving an employer’s social media policy, the National Labor Relations Board (Board) found that an employer's policy violated employees’ rights under the National Labor Relations Act. The Board reasoned that the policy was written in overly general terms and therefore had “a reasonable tendency to inhibit employees’ protected activity.” This decision follows a series of social media reports issued by the Board over the past year, and appears to confirm what many employers had feared based upon those reports: the Board appears ready to reject all broad prohibitions on what employees may say online. More ›

NLRB: Hospital’s Practice of Asking Employees not to Discuss Ongoing Investigations of Misconduct Interfered with Employees’ Rights

The National Labor Relations Board has ordered an Arizona hospital to end its practice of asking employees not to discuss alleged employee misconduct with co-workers while the hospital is investigating the alleged misconduct. With one member dissenting, the Board made clear that it will allow an employer to limit employees’ discussion of an ongoing disciplinary investigation only if a unique justification arises during the investigation. More ›

New Report Issued on Employee use of Social Media and the National Labor Relations Act

On May 30, 2012, the National Labor Relations Board’s General Counsel issued a Report Concerning Social Media Cases. In it, the General Counsel’s Office reviewed seven cases concerning employers’ social media policies regarding. In its review, the General Counsel found several aspects of these policies to be overbroad while affirming others. More ›

Federal Judge Strikes Down NLRB “Speedy Election” Rule on Technicality

A federal district court in Washington D.C. has struck down the recently enacted National Labor Relations Board rule that expedited union representation elections. The rule, which had been in effect since April 30, sped up union elections from an average of 38 days after a petition is filed to as few as 10 days. In a May 14 decision in the case of Chamber of Commerce v. National Labor Relations Board, however, District Court Judge James Boasberg found that the Board was acting without a quorum when two of its members enacted the rule in December 2011. As a result, Judge Boasberg determined, the so-called "speedy election" rule is invalid. More ›

South Carolina Court Strikes down NLRB Posting Rule

Up until December, 2010, the National Labor Relations Board (“NLRB”), unlike most federal labor agencies, did not require employers to post a general notice of employee rights in the workplace. That changed, however, upon issuance of a proposed rule wherein all employees subject to the National Labor Relations Act (“NLRA”) would be required to post notices which informed employees of their rights under the NLRA. The final rule was ultimately published in August, 2011, and the requirements were set to take effect on April 30, 2012. The Chamber of Commerce of the United States and the South Carolina Chamber of Commerce sought an injunction to prevent the implementation and enforcement of the rule. The U.S. District Court for the District of South Carolina agreed with the Chambers, finding that the Board, in promulgating the final rule, exceeded its authority in violation of the Administrative Procedure Act. You can read the decision here.   More ›

NLRB Finds Arbitration Provision Violative of NLRA

D.R. Horton, a homebuilder with operations in more than 20 states, began to require each new and current employee to execute a "Mutual Arbitration Agreement" (MAA) as a condition of employment, requiring arbitration of all claims on a individual basis, precluding them from filing joint, class or collective claims addressing their wages, hours, or other working conditions against the employer in any forum.  More ›

State Claims for Wrongful Discharge Related to Facebook post not Preempted by Federal Law

A nurse posted complaints about high patient-to-nurse ratios at the hospital where she worked on her Facebook page, and asserted that the high ratio negatively impacted patient safety. The nurse was subsequently warned that she should think about her behavior because her actions—whether at work or at home — reflected on the hospital. Fearing termination, the nurse deleted the Facebook page. Five months later, the nurse was terminated for substandard customer service. She sued the employer in Kentucky state court, alleging that she was fired in retaliation for exercising her free-speech rights under the Kentucky Constitution. The hospital sought to remove the lawsuit to federal court on the basis that the nurse’s complaint involved claims for violations of federal law, including the National Labor Relations Act (NLRA), and that those federal laws preempted her complaint. The U.S. District Court for the Eastern District of Kentucky found that the nurse’s claim was firmly rooted in Kentucky state law and that neither the NLRA nor the Labor Management Relations Act preempted the claim. Accordingly, the case was remanded to the state court. Employers should be mindful that an employee’s public complaints about working conditions on social media networks may be protected by various state law protections that vary depending on the state of employment, which could in turn support a claim for wrongful discharge. Consequently, it is important to fully evaluate not only applicable federal laws when making an adverse employment decision, but also applicable state and local laws that may offer additional protections to an employee.

Moore v. Highlands Hosp. Corp., No. 7:11-cv-131 (E.D. Ky. Nov. 17, 2011)

Employer need not Disclose Result of Psychological Aptitude Tests to Union

A union requested copies of the results of a pre-hire psychological aptitude test administered by the employer as part of an investigation relating to a bargaining unit dispute. The employer refused to provide the results without the applicants’ consent, arguing that disclosing the aptitude test results would violate the applicants’ reasonable expectations of privacy because the employer had told applicants that the results would generally be treated as private. The union filed an unfair labor practice charge, alleging that the National Labor Relations Act (NLRA) required disclosure of the records. The U.S. Court of Appeals for the First Circuit found that the applicants retained a legitimate expectation of privacy in the test results because the written notice that results could be disclosed in certain situations “could not eliminate all expectations of confidentiality in employee test results.” Employers should be aware that an exception allowing disclosure of sensitive information to a union in compliance with the NLRA does not necessarily require disclosure of such information in all circumstances once a demand is made by the union. Employers should review their policies and practices to identify records containing private or sensitive employee information and assess on a request-by-request basis whether such information should be disclosed to unions.

NLRB v. USPS, Case No. 11-1225 (1st Cir. Oct. 27, 2011)

Employee Statement Advising Supervisor to Bring Boxing Gloves is Metaphoric

A construction company issued warnings to its electricians for taking breaks that exceeded a 15-minute limit and told them that future infractions would lead to progressive discipline. One electrician responded that if he was laid off for such an infraction “it’s going to get ugly” and that the supervisor “better bring [his] boxing gloves.” A second electrician echoed the statement that “it’s going to get ugly.” Both electricians were fired for making statements that managers interpreted as physical threats in violation of the company’s zero-tolerance policy for workplace violence. The electricians successfully challenged their terminations as violations of Section 7 of the National Labor Relations Act (NLRA), which protects concerted activity. The U.S. Court of Appeals for the D.C. Circuit upheld the National Labor Relations Board’s decision reinstating the employees. The court held that when viewed objectively, the statements were metaphoric figures of speech that expressed the electrician’s willingness to “fight” for better work conditions. The statements were “single, brief, and spontaneous reactions” of resistance that were not so egregious as to remove them from the NLRA’s protections. Employers encountering similar employee statements are advised to object to them as acts of insubordination, as well as threats of physical violence. Although the court stated that the electricians’ statements were not obscene, it recognized that the NLRA does not tolerate “obscene insubordination” simply because it is not accompanied by physical threats.

Unanimous Board Determines Make-Whole Relief Is Fundamental

A Florida food products wholesaler unilaterally changed the health care plan for its bargaining unit employees twice in two years. Each change led to increased premiums and copayments for the unionized employees. The administrative law judge (ALJ) and reviewing bodies that subsequently reviewed these facts agreed that the unilateral change violated Section 8(a)(5) of the National Labor Relations Act, but disagreed about the appropriate remedy. The ALJ ordered the wholesaler to: cease and desist from changing the health plan; restore the health coverage in place prior to the unilateral changes, upon the union’s request; and make the employees whole for losses suffered as a result of the unilateral changes. A two-member National Labor Relations Board (NLRB) modified the remedy to eliminate the make whole relief if the union exercised its option to retain the final unilaterally implemented health insurance plan. The case eventually was argued before the U.S. Supreme Court, which remanded it after ruling that at least three members must convene in order to exercise the delegated authority of the NLRB. On second review, the four-member NLRB unanimously restored the make whole-relief award, regardless of whether the union requested rescission of the health care plan change. In doing so, the NLRB found that its earlier remedy was based on mechanical adherence to Brooklyn Hospital Center, 344 NLRB 404 (2005), a decision that itself ignored 40 years of NLRB precedent, without explanation. The unanimous NLRB held that a make-whole remedy is a fundamental element of the Board’s remedial approach. Make-whole relief fully compensates employees for economic losses caused by unfair labor practices. Also, it operates as a financial disincentive against the commission of unlawful unilateral changes. Employers should note that unlawful unilateral changes that result in economic losses to unit employees are recoverable independent of a union’s judgment on whether to seek rescission.