The NLRB - More Rapid Fire From An Unauthorized Weapon?

by Cozen O'Connor
Contact

What a quagmire we find ourselves in. Actually, that the NLRB finds itself in. Although continuing to issue rulings and advice memoranda in a sort of free- and unfettered-looking way, the question of the NLRB’s authority to have issued everything since January 2012 is now beneath the gavels of the Justices of the Supreme Court. The argument is that President Obama had made illegal recess appointments to the NLRB, and, without the proper quorum, no lawful action could have been taken by the NLRB since then.

The Supreme Court agreed to take up the issue in the Fall, and just yesterday a large corporation in New York filed papers with the Supreme Court to essentially stop the NLRB from harassing the company on various union-election issues. Yet, the NLRB continues to chug along and do its thing, having recently taken action on three issues affecting the workplace and social media. Might as well stay up to date:

1.         Can employees be prevented from discussing an internal complaint?

“No”, the NLRB continues to say. It recently issued an Advice Memorandum to provide further guidance on the so-called “confidentiality rule”. In that Memorandum, the NLRB re-affirmed that an employer “cannot maintain a blanket rule regarding the confidentiality of employee investigations, but must demonstrate its need for confidentiality on a case-by-case basis.” To be lawful, the company “must show more than a generalized concern with protecting the integrity of its investigation”, and instead must establish that need “in the context of a particular investigation that presents specific facts giving rise to a legitimate and substantial business justification.”

2.         Can employees be prevented from disclosing “confidential” information?

“Depends what you mean by ‘confidential’”, the NLRB continues to say.  Last month, the NLRB affirmed a ruling of an ALJ that Quicken Loans violated the law. Although acknowledging that “[t]he line between lawful and unlawful restrictions is very thin and often difficult to discern[,]” the company supposedly violated the law by: (1) including within its definition of “proprietary/confidential information” such things as non-public information about personnel, and employee phone numbers and addresses; and (2) maintaining a policy stating that employees may not, among other things, “publicly criticize, ridicule, disparage or defame” the company.

3.         Can employees be prevented from doing a lot of e-mail?

“Not if you’re singling out protected employees”, says the NLRB. Also last month, the NLRB affirmed another ALJ ruling that found certain conduct by the Weyerhaeuser Company to be unlawful. Although the company’s limited policy prohibiting employee use of electronic media for other than business purposes, with some limited personal activities, lawful, the NLRB decided that company officials violated the law by warning union employees (more so than non-union employees) that they were engaging in an “unacceptable volume” of e-mails during work time.

Employer Take Away: What should you as an employer take away from this development?

What to do, what to do? It still seems that the NLRB is grossly overreaching in many areas, and we may now start to see many of those decisions start to come unraveled by those in the judicial branch. The NLRB now has to answer to the Supreme Court, and we are left to wait until the Court’s next term for some definitive answer as to which, if any, of the NLRB decisions from the past couple of years your company truly needs to respect.

So what does your company do in the meantime? Do you assume the NLRB’s recent decisions and guidance will have no force and effect, or do you make an effort to have your policies and practices comply?

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Cozen O'Connor | Attorney Advertising

Written by:

Cozen O'Connor
Contact
more
less

Cozen O'Connor on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!