Labor Relations Update

Tag Archives: employer policies

Handbook Civility Rules Aimed at Preventing Toxic Work Environments Found Lawful by NLRB’s Division of Advice

By Mark Theodore, Joshua Fox and Elizabeth Dailey on Posted in Uncategorized
The NLRB’s Division of Advice recently released a long-awaited Advice Memorandum (originally issued in February 2019, Chipotle Mexican Grill, Case 28-CA-229134 (Feb. 22, 2019)) concerning the validity of two workplace rules under the Boeing standard: (1) a rule encouraging employees to “[b]e…objective” in their communications; and (2) a rule requiring employees to notify the employer … Continue Reading

NLRB: Policy Prohibiting Personal Cell Phones in Work Areas Due to Safety Concerns May Be Lawful under Boeing

By Mark Theodore, Joshua Fox and Elizabeth Dailey on Posted in Employer policies, Handbook, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Uncategorized
As we previously suggested, the NLRB’s adoption of the Boeing standard for determining the lawfulness of employer’s workplace rules, policies and handbook provisions has provided significant fodder for interesting cases. The Board has struggled for years with the concept that certain commonsense employer business policies can be unlawful. It is difficult to draw bright-line rules … Continue Reading

Recent ALJ Decision Provides Important Nuance Regarding Workplace No Recording Rules

By Steven Porzio on Posted in Employer policies, NLRA, NLRB, Section 7
In late 2017, the NLRB in Boeing Company, 365 NLRB No. 154 (2017), established a new three category system for classifying various employer policies. The new system was designed to balance a “work rule’s negative impact on employees’ ability to exercise their Section 7 rights and the rule’s connection to employers’ right to maintain discipline … Continue Reading

NLRB Rules Employer’s Handbook Statement That Benefit Available To “Non-Union Employees” Violates Act

By Mark Theodore on Posted in Employer policies, General Counsel, Handbook, NLRA, NLRB, Protected activity, Section 8(a)(1), Uncategorized
During the last decade, a number of NLRB decisions faulted employers for written policies that were considered to be overbroad in violation of the National Labor Relations Act.  These rulings sprang largely from the NLRB’s decision in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), where the Board set forth a standard for evaluating the lawfulness of employer policies that … Continue Reading

You’ve Got Mail: NLRB Requests Briefing on Standard for Employee Use of Employer Owned Electronic Communication Systems

By Michael Lebowich and Jordan Simon on Posted in Confidentiality, Email, Employer policies, NLRA, NLRB, Section 7, Social Media
In what could signify the beginning of the end for Purple Communications, Inc., 361 NLRB 1050 (2014) and guaranteed employee access to Employer computer systems for union organizing purposes, the NLRB issued a notice on August 1 inviting the filing of briefs on whether the Board should uphold, modify or overrule the decision.  Under Purple … Continue Reading

NLRB General Counsel Issues Handbook on Handbook Rules

By Michael Lebowich, Joshua Fox and Jay M. Cohen on Posted in Advice, General Counsel, Handbook, NLRA, NLRB, Non-Union employers, Section 7, Uncategorized
Following up on the NLRB’s decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), on June 6, NLRB General Counsel Peter Robb issued a new Guidance Memorandum (18-04) detailing how NLRB Regional Offices receiving claims of improper employment policies are to interpret employer workplace rules. As we reported this past December (here), … Continue Reading

Here We Go: The Full Board Finally Starts to Make Its Mark

By Michael Lebowich and Joshua Fox on Posted in Employer policies, Handbook, Joint Employer, NLRA, NLRB, Section 7, Section 8(a)(1), Unfair Labor Practices
 NLRB Reverses Precedent on Joint Employer Liability and Standard Governing Employee Handbooks This afternoon, just two days prior to the end of Chairman Philip Miscimarra’s term, the NLRB issued a pair of 3-2 decisions overruling significant precedent regarding joint-employer status and the legal standard governing whether workplace rules violate the exercise of Section 7 rights … Continue Reading

Divided NLRB Rules Employer Policy Protecting Customer Information Is Lawful

By Mark Theodore on Posted in Confidentiality, Employer policies, General Counsel, Handbook, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Uncategorized
Employers can prohibit the use by employees of the names, social security numbers and credit card numbers of customers in furtherance of organizational activities.  If this seems like it should have been a foregone conclusion, a recent case from the NLRB shows how the agency’s continued parsing of employer policies could easily have turned this notion on its … Continue Reading

NLRB GC’s Attempt At Summary Judgment In Handbook Case Rejected By NLRB Majority

By Mark Theodore on Posted in Due Process, Employer policies, General Counsel, NLRA, NLRB, Section 7, Section 8(a)(1), Uncategorized, Unfair Labor Practices
The change in a presidential administration always brings changes to government agencies, including the NLRB, as new appointments are made reflecting the policy preferences of the administration.  The NLRB is not immune to this change and it has been historical practice for the president to appoint three members from the party of the administration and … Continue Reading

NLRB Refuses to Approve Withdrawal of Charges Despite Settlement of Class Action Case

By Mark Theodore on Posted in Arbitration, Employer policies, Handbook, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Uncategorized
We know that, among many other common employer policies, the NLRB considers many mandatory arbitration agreements to be unlawful, particularly where they prohibit class or collective actions.  See Murphy Oil USA, Inc., 361 NLRB No. 72 (2014).  Unlike a more run of the mill handbook violation where the government seeks removal or modification of the policy, an … Continue Reading

NLRB Work Rule Decisions Continue to be a Mixed Bag

By Ronald Meisburg on Posted in Handbook, NLRB, Social Media Policies, Uncategorized
As the NLRB continues to wade through the pool of issues arising from social media policies and other workplace rules, an Administrative Law Judge’s recent decision in Cellco Partnership d/b/a Verizon Wireless (July 25, 2014) illustrates the growing number of problems employers face in developing corporate policies and the variability of NLRB decisions. In this … Continue Reading

NLRB Overturns Decert Election Based On Employer’s “Promises” Of 401(k)

By Mark Theodore on Posted in Decertification elections, Employer policies, Handbook, NLRA, NLRB, Section 8(a)(1), Uncategorized
The last few months have seen very little in the way of NLRB decisions.  The recent Supreme Court decision  where the recess appointments to the NLRB were invalidated, likely will further slow down the process of issuing decisions. Still, the NLRB has had a full complement of members for almost a year, and the agency manages to … Continue Reading

Dues Checkoff Clear In Revocation Requirements, Says NLRB (By Default)

By Mark Theodore on Posted in Employer policies, General Counsel, Handbook, NLRA, NLRB, Section 8(a)(1), Section 8(a)(2), Section 8(b)(1)(A), Unfair Labor Practices
The looming presidential election seems to have slowed the NLRB down, despite the fact the Board is currently at a full complement of five members.  As of July 24, it will be down to four, as Member Flynn’s resignation will become effective at that time. The Board cases being decided these days largely involve mundane matters, … Continue Reading

Independence Day Incrementalism: NLRB (Again) Expands On Precedent By Ruling Employer Off-Duty Access Rule Unlawful

By Mark Theodore on Posted in General Counsel, Handbook, NLRA, NLRB, Off-duty Access, Protected activity, Section 7, Section 8(a)(1), Unfair Labor Practices
Last year the NLRB’s order of the day was sweeping change.  That brought us the employee rights poster, the ambush election rules, and micro unions.  The Board today is not acting in such a bold manner, and instead is seeking gradual change through a policy of incrementalism.  We saw recently how the current Board expanded … Continue Reading

Finding Certain Facebook Activity To Be Unprotected, NLRB Dismisses Two Charges

By Mark Theodore on Posted in Advice, Employer policies, Facebook, Handbook, LinkedIn, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Social Media, Social Media Policies
The intersection of social media and employee rights under the National Labor Relations Act has received a great deal of attention in recent months, including recently on this blog.  Social media sites such as Facebook and LinkedIn have made it very easy for people to stay connected.  With a simple push of the button, everyone in … Continue Reading

Rhyme or Reason? Trying to Make Sense of the NLRB’s Social Media Cases

By Scott Faust on Posted in Employer policies, General Counsel, NLRA, NLRB, Non-Union employers, Protected activity, Section 7, Social Media, Unfair Labor Practices
Since the NLRB’s Office of the General Counsel (“OGC”) issued the first “Facebook” complaint in American Medical Response of Connecticut, Inc. in October, 2010, dozens of unfair labor practice charges involving social media have been filed, the Acting General Counsel has identified social media cases as a priority, and gallons of electronic ink have been … Continue Reading

NLRB: All Employers Must Post Notice Informing Employees Of Rights Under NLRA

By Mark Theodore on Posted in Employer policies, NLRA, NLRB, Representation Elections, Rulemaking, Section 7
Concluding that “many employees protected by the NLRA are unaware of their rights under the statute,” the NLRB today issued a Final Rule today on Notification of Employee Rights under the National Labor Relations Act.pdf.  As of November 14, 2011, all employers falling under NLRB jurisdiction will be required to post a notice the content … Continue Reading

Settlement Reached In NLRB Facebook Posting Case

By Mark Theodore on Posted in Employer policies, NLRB, Unfair Labor Practices
The infamous NLRB Facebook posting has been resolved, leaving with barely a whimper as opposed to the explosion of social media induced unfair labor practice charges every employer feared. The NLRB announced on February 7 that settlement had been reached in the case of the ambulance driver who was discharged for posting negative comments about her supervisor on her … Continue Reading
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