On February 27, 2023, the General Counsel of the National Labor Relations Board (“NLRB”) released an advice memorandum (“Memorandum”) on the topic of an employee discussing issues of racial discrimination in the workplace and on social media. The General Counsel determined that discussions of racial discrimination in the workplace are protected concerted activity under Section 7 of the National Labor Relations Act (“NLRA”), and therefore, the NLRA protects employees who engage in such discussions from employer retaliation. This determination is similar to a General Counsel advice memorandum from January 20, 2016, in which the General Counsel concluded that an employee’s “discussion of alleged racial discrimination in terms and conditions of employment was protected under the Board’s doctrine of ‘inherently concerted’ activity.” However, the Memorandum issued on February 27 seemingly expands that standard to employees who discuss racial discrimination regardless of whether the employee discussions are related to racial discrimination occurring in the workplace or made in connection to the terms and conditions of employment.Continue Reading NLRB Broadens Scope on Protected Concerted Activity for Workplace Discussions of Racism
NLRB General Counsel Issues Post-Boeing Guidance Memorandum On Employer Handbook Rules
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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The NLRB Reverses Course On Standard For Evaluating Employee Handbook Rules
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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President Moves to Fill Empty Spot on NLRB
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
NLRB’s Case-By-Case Scrutiny Standard For Investigative Confidentiality Rules Continues
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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Think Your Arbitration Clause Protects You From Having to Defend Class Actions in Court? Maybe Not.
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 &
NLRB Issues a Complaint Alleging That Misclassification of Independent Contractors is an Unfair Labor Practice: Another Front on Which to Wage the Independent Contractor War
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
NLRB’s General Counsel Issues Guidance on Employee Handbook Provisions
On 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,
“Egregious” Conduct on Social Media Not Protected by the NLRA
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.Continue Reading “Egregious” Conduct on Social Media Not Protected by the NLRA
High Court Rejects NLRB Recess Appointments — Impact Remains To Be Seen
The US Supreme Court recently found President Obama lacked the authority to make 3 recess appointments to the National Labor Relations Board in January 2012. It held the appointments invalid because the Senate was not in a “recess” at the time but rather was holding pro forma sessions every three days for weeks in a