Protected Activity National Labor Relations Board

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

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: Warning Coworker that Job is at Risk Inherently Protected Activity

Earlier this month, the National Labor Relations Board (NRLB) ruled that an employee who was fired after warning a co-worker his job was at risk had engaged in inherently protected activity and must be reinstated. The case,...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

Election Day Concerns for Employers: Political Discussions in the Workplace and Time Off to Vote

With the highly contested presidential election on Tuesday, November 8, 2016, many employers are concerned about political discussions in the workplace, whether those discussions can be restricted, and how to handle...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

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

Federal ALJ Says Ban on Conducting Personal Business in Handbook Violated NLRA Rights

The National Labor Relations Board continues its assault against standard employment policies considered to interfere with employee rights. This time, a federal administrative law judge accepted the Board counsel’s argument...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

Maintaining Patient Privacy In The Digital Age

Those in the heavily regulated healthcare industry know that patient information is sacrosanct. And for good reason; improper handling can result in hefty fines or criminal prosecution under the Health Insurance Portability...more

Work Rules Hanging in the Balance? NLRB Dissenter Proposes Balancing Test Blueprint for Work Rule Challenges, a Significant...

Earlier this month, the NLRB struck down a couple of facially-neutral workplace civility rules in an employer’s Code of Conduct. Ho hum, business as usual. What is fascinating, however, about this otherwise unremarkable...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

Can Your Employees Take A Selfie At Work?

Many employers maintain policies prohibiting employees from using cell phones and other recording devices at work. The reasons for such policies range from maintaining productivity, to protecting customer and employee...more

Does Employees’ Use of Apps Lead to Violations of Workplace Policies?

The constant and evolving release of new apps used by employees both personally and in the workplace continue to present challenges to employers in the implementation and execution of workplace policies designed to protect...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

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

NLRB, Social Media, and Employee Handbooks

Would your company’s employee handbook pass a National Labor Relations Board (NLRB) social media review and investigation? The U.S. Chamber of Commerce highlighted some troubling notions in a report issued last week:...more

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