On June 6, 2018, National Labor Relations Board (“NLRB”) General Counsel Peter B. Robb issued a memorandum (“GC 18-04”) to NLRB Regional Directors providing guidance on how to analyze employee handbook rules in the wake of the Board’s recent decision in The Boeing Co., 365 NLRB No. 154 (2017).  This guidance provides employers with a helpful road map for navigating the Board’s new three-category—and more employer-friendly—approach to evaluating the lawfulness of employer handbook rules by balancing the employer’s interests against an employee’s right to engage in protected, concerted activity under Section 7 of the National Labor Relations Act (NLRA).

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On December 14, 2017, the National Labor Relations Board discarded its longstanding rule that facially neutral employer rules are unlawful if an employee would “reasonably construe” the rule as prohibiting an employee from engaging in protected, concerted activity under Section 7 of the National Labor Relations Act (NLRA).   Moving forward, the Board held, it will balance the employer’s justification for the rule against the impact on NLRA rights, and take into account the facts and circumstances including the relative importance of the employer’s justification, the particular work setting or event, and the importance of the NLRA right at issue.  This decision overrules 13 years of precedent, and offers some measure of respite to employers stumped by the Board’s past approach to evaluating handbooks, social media standards, technology policies, conduct rules, and other common workplace policies.

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Photo: President Donald J. Trump (WhiteHouse.gov)
Photo: President Donald J. Trump (WhiteHouse.gov)

At the conclusion of the Obama presidency there remained two open seats on the National Labor Relations Board (“NLRB”).  The five member panel operated with two Democrats and one Republican for a significant period of time given the refusal of the Republican Senate to move

On March 24, 2017, the United States Court of Appeals for the District of Columbia Circuit in Banner Health System v. NLRB, 851 F.3d 35 (D.C. Cir. 2017) again declined to rule on the National Labor Relations Board’s (“NLRB” or “Board”) position that employers cannot prohibit discussions of matters under investigation absent a specific, case-by-case determination supporting the need for confidentiality. As a result, the Board’s position that employers violate Section 8(a)(1) of the National Labor Relations Act (NLRA) by restricting such discussions absent case-specific evidence that “witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, and there is a need to prevent a cover up” continues in force, with no clear disapproval from the courts.
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Ernst & Young, LLP, a global professional services firm, made an effort to stem the tide of challenging and expensive class action litigation by including in their employment agreements a clause by which employees waive their rights to file work-related claims as a collective group.  The contracts require employees to arbitrate claims individually.  Ernst &

Photo: Bill Ward via Flickr (CC by 2.0)
Photo: Bill Ward via Flickr (CC by 2.0)

The Los Angeles office of the National Labor Relations Board (“NLRB”) issued a Complaint based on an unfair labor practices charge brought by the International Brotherhood of Teamsters (“Teamsters”) against Intermodal Bridge Transport, a California company in the logistics and transport business.  The

Employee Handbook - homemade by McLaneOn March 18, 2015, the General Counsel of the National Labor Relations Board (“NLRB”) issued a report setting out the NLRB’s view on employee handbook policy language.

Section 7 of the National Labor Relations Act, which is enforced by the NLRB, protects employees’ rights to engage in certain protected activities. As explained in the report,

Photo Credit: Sean MacEntee via Flickr (CC by 2.0)

Employees’ rights to act together to address conditions at work are protected under the National Labor Relations Act. This protection applies equally to both union and non-union employees and extends to employees’ work-related conversations on social media.  But, as many employers may wonder, how far does the protection of the Act reach?  The NLRB’s decision in Richmond District Neighborhood Center and Ian Callaghan (Case 20-CA-091748, October 28, 2014) provides some guidance on it.


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An administrative law judge (“ALJ”) writing on behalf of the National Labor Relations Board (“NLRB”) reviewed the social media/on line communications policy of The Kroger Co. of Michigan, a retail grocery chain, in the context of an unfair labor practices complaint.  In the decision issued on April 22, 2014, the ALJ ruled that portions of