Protected Activity The National Labor Relations Act

News & Analysis as of

NLRB Finds Employee’s Facebook Posts Critical of Union Protected

Seyfarth Synopsis: NLRB affirms ALJ’s ruling finding that a union member’s criticisms on Facebook of the union that represented him were protected by the NLRA. On February 7, 2017, in Laborers’ International Union of...more

Recent Decisions Clarify (Un)Enforceability of Class Action Waivers in Employment Agreements

Companies looking to waive class action rights of employees may instead be waving goodbye to provisions in their employment contracts. Two recent decisions in California—one administrative and one in the 9th Circuit—recently...more

Employees, Political Advocacy and the NLRB – What Can an Employer Do?

In the first few weeks of the Trump Presidency, there have been numerous marches, protests and other forms of political advocacy expressing views both in support of and in opposition to the President’s various appointments,...more

NYSDOL Adopts Regulations Implementing State Law Limiting Employer’s Right to Restrict Employee Discussion Regarding Wages

In October 2015, New York amended its equal pay law making it unlawful for an employer to prohibit employees from inquiring about, discussing, or disclosing their wages or the wages of other employees. N.Y. Lab. Law §...more

Dear Littler: Can A Boss Fire Someone for Off-Duty Political Activities?

Dear Littler: I saw one of my employees on the local news the other night participating in a political rally over the weekend. We try to maintain a tension-free workplace. Can I discipline him for this conduct? Can I at least...more

2016/2017 Labor & Employment Observer

Activist NLRB Created More Problems For All Employers in 2016 - What Happens Under President Trump? During 2016, the National Labor Relations Board (NLRB or the Board) maintained its generally pro-union, anti-employer...more

NLRB General Counsel Requests To Expand Worker Protections Regarding Intermittent Or Partial Strikes

Intermittent or partial strikes are becoming more common as unions continue to push for an increased minimum wage, particularly in the quick-serve restaurant industry. The National Labor Relations Board's (NLRB) General...more

Strike Early, Strike Often: NLRB Urged to Expand Protections to Intermittent Strikers

Seyfarth Synopsis: The Office of the General Counsel for the NLRB has asked the Board to adopt a sweeping new test that will significantly broaden the protections granted to employees who engage in frequent, short-term...more

What’s Good for the Goose…

Over the past few years, the National Labor Relations Board (NLRB) has taken issue with employers that discipline employees over Facebook and other social media postings. The NLRB allows employees to discuss wages and other...more

NLRB Administrative Judge Finds Employee Facebook Post Was Protected Speech

Seyfarth Synopsis: A new NLRB decision that attempts to define further the boundaries of protected speech under the NLRA. In Laborers’ International Union of North America and Mantell, Case No. 03-CB-136940 (NLRB...more

Employment Alert: Ninth Circuit Nixes Employee Class and Collective Action Waivers, Calling into Question Future Viability of...

Mandatory employment arbitration agreements suffered a significant blow last week, when the U.S. Court of Appeals for the Ninth Circuit (covering California, Washington, and other western states) found illegal and...more

Saying “You’re Fired” Could Bring Labor Pains 

An Ohio employer recently learned the hard way that employers need to be cautious when it comes to communicating with striking employees about permanent replacements. By mistakenly telling them that their employment had been...more

Does New Jersey's Conscientious "Everyone" Protection Act Trump the NLRB's Exclusive Jurisdiction? State Supreme Court says "Yes"...

Executive Summary: Just when employers thought New Jersey's Supreme Court could not expand the state's whistleblower law further (as we reported last summer), the Conscientious Employee Protection Act (CEPA) once again has...more

NLRB Tells Employers to Mind their Own Business

Seyfarth Synopsis: An Administrative Law Judge held that an employer’s policy of prohibiting employees from conducting personal business at work, along with its social media and solicitation/distribution policies, violated...more

NLRB Punishes Company for Asking Employees to Maintain Positive Work Environment

As attorneys we often advise clients to continually review and revise their employee handbooks. One of the reasons why is that what appears to be innocent language ends up costing employers money due to a capricious decision...more

Seventh Circuit Creates Circuit Split on Arbitration Agreements that Prohibit Class or Collective Wage and Hour Claims

Recently, the Seventh Circuit Court of Appeals in Chicago held in Lewis v. Epic Systems Corporation that a mandatory agreement between the employer (Epic) and its employees requiring arbitration of wage and hour claims on an...more

Bring on the Chain Mail: NLRB Strikes Down Another Facially Neutral Email Use Policy

A National Labor Relations Board (NLRB) judge has struck down Caesar’s Entertainment Corporation’s policy that prohibited employees’ using the company email system to distribute “nonbusiness” information. Why, you ask?...more

Another Day, Another Violation: Board Targets Hospital’s Work Rules Prohibiting Offensive Conduct

Seyfarth Synopsis: Board panel finds hospital’s work rule prohibiting employees from engaging in offensive conduct to be unlawful. In Valley Health System, LLC d/b/a Spring Valley Hosp. Med. Ctr., 363 NLRB No. 178 (May...more

How Gov't Contractors Can Avoid Pay Transparency Mishaps

The final rule implementing Executive Order 13665 (the Pay Transparency Act) went into effect on Jan. 11, 2016. The act prohibits employers from requiring their employees to keep their compensation confidential. Under the new...more

Unworkable Employer Work Rules: The Board Once Again Makes Perfection the Enemy of the Good

The Board majority holds firm to its standard for evaluating employer work rules despite Member Miscimarra’s vigorous dissent advocating for a new, clearer standard that takes into account an employer’s legitimate business...more

A Negative Review May Be Protected Activity Under U.S. Employment Law

Yelp, Inc. is more accustomed to being on the giving—rather than the receiving—end of a negative review. That changed recently when a Yelp customer service employee, Talia Ben-Ora, posted an open letter to Yelp’s CEO on her...more

Exercise Aniston-esque restraint when analyzing offensive employee posts

This week’s employment law lesson comes to us from the movie Horrible Bosses. In the movie, Julia (played by Jennifer Aniston) is a dentist who employs dental assistant Dale (played by Charlie Day). After Julia uses her boss...more

EEOC Ratchets Up Focus On Retaliation: EEOC Publishes First New Enforcement Guidance on Retaliation In Nearly Two Decades

The EEOC seeks public comment on its new Enforcement Guidance on Retaliation and Related Issues, which will supersede the agency’s last-issued guidance on the topic from 1998. The updated guidance addresses several...more

The NLRB Finds Whole Foods’ No-Recording Policy Unlawful

In Whole Foods Market, Inc., the National Labor Relations Board, in a 2-1 decision, held that Whole Foods’ rules prohibiting the recording of conversations in the workplace violated Section 8(a)(1) of the National Labor...more

NLRB Strikes Down Policy Prohibiting Recordings by Employees

The National Labor Relations Board (“Board”) finished the 2015 year in the same way it started: With continued scrutiny of seemingly neutral employer policies. The Board continues to assume that employees will read these...more

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