Protected Activity National Labor Relations Board

News & Analysis as of

Seventh Circuit Decision Drives Home Importance of Prudence in Communicating With Employees About Union Issues

In AutoNation, Inc. v. NLRB, the Seventh Circuit enforced a National Labor Relations Board decision that found a car dealership to be in violation of the National Labor Relations Act for interfering with workers’ efforts to...more

Ingles Solamente Reglas

English-only rules are not as common as they once were, but many employers still require employees to speak English only in the workplace. Justifications for these rules vary, but the Equal Employment Opportunity Commission...more

NLRB Judge Orders Reinstatement Of Employee Who Made Racist Taunts Toward African-Americans

The National Labor Relations Board promotes itself as a government agency that “safeguards employees’ rights,” but you would not know it from a recent ruling upholding racist statements made by union supporters on a picket...more

Surprise! NLRB Approves Employer’s Challenged Social Media Policy

In somewhat of a surprise, recently the NLRB affirmed an Administrative Law Judge’s decision, which had rejected the NLRB General Counsel’s challenge to a portion of an employer’s social media policy as unlawful. The...more

Tinley Park Hotel and Convention Center: The NLRB Gets Out Its Selfie Stick

Over the past few years, many employers have found out—the hard way—that the National Labor Relations Board is serious in policing employee handbooks for provisions that the Board believes are “overly broad” under Section 7...more

NLRB Rules that Racism is a Protected Activity

Although no one reading this article would disagree with the premise that employers cannot and should not tolerate bigotry from anyone in their workforce, the NLRB apparently thinks otherwise. In a troubling decision handed...more

Unfortunately, Offensive Racial Comments Don’t Always Get You Fired (At Least Under Labor Law)

Under the National Labor Relations Act, certain union activities are considered “protected.” That is, employees engaging in union activity, or union representatives carrying out their duties in the context of grievance...more

“Ambush” Election Challenge Fails in Federal Court

A federal judge in Texas recently ruled in favor of the National Labor Relations Board (NLRB) in a case challenging the Board’s “ambush” election rules. The lawsuit, Associated Builders and Contractors of Texas, Inc. v....more

NLRB Rules 'Vulgar' Union Buttons Allowed

In our prior alerts, we notified you of the National Labor Relations Board’s (NLRB) recent decisions clarifying when, in the current board's estimation, an employer violates Section 7 of the National Labor Relations Act...more

Déjà Vu All Over Again: NLRB Rejects Employer's Handbook Policies

You may have noticed that the NLRB has been coming down pretty hard on employment policies, practices and handbooks lately. They've added yet another decision to the arsenal this past month. ...more

To Fire or Not to Fire for Employee’s Social Media Posts

After watching the firing of the digital communications manager for the Houston Rockets during their run through the playoffs (read the story here in the Houston Chronicle).  I figured it would be a good time to revisit the...more

Fenwick Employment Brief - April 2015

Ninth Circuit Reviews Enforceability of Waiver of Right to Reemployment - Does California Business and Professions Code § 16600 prohibit employees from waiving their right to reemployment with prior employers? The...more

Can You Lawfully Prohibit Secret Recordings in the Workplace?

It is a safe bet that most if not all of your employees own a mobile or smart phone. It is also a safe bet that those phones have the capability of capturing pictures, taking video and recording conversations. ...more

Ninth Circuit Calls Into Question “No Reemployment” Provisions In California Settlement Agreements

On April 8, 2015, in Golden v. California Emergency Physicians Medical Group, the Ninth Circuit Court of Appeals broadly interpreted California’s statutory provisions regarding restrictive covenants in the context of...more

NLRB Rejects Profane Employee Facebook Rant as Grounds for Termination

For decades, the National Labor Relations Board has recognized boundaries on employees’ rights to engage in activity protected under federal labor laws. While employees have been granted leeway to engage in heated or...more

No, You Cannot Prohibit Employees from Protesting or Discussing Their Wages

A reminder to employers concerned about employees’ discussing their wages or acting in concert to petition for higher wages: This is legally protected activity that employers cannot prohibit or restrain. A recent National...more

NLRB Says Individual Gripes About Wages are "Inherently Concerted" Activity

Many employers consider it appropriate to discourage employees from discussing compensation with their coworkers. Particularly in non-unionized environments, employers may not think twice before disciplining employees for...more

NLRB Rules That Employees Have Right to Organize Using Company Email

The National Labor Relations Board (NLRB) issued its decision in Purple Communications, Inc. & Communication Workers of America, AFL-CIO today, holding that employees who are given access to company email accounts have a...more

Employees Must Be Permitted to Use Their Employer Email Systems for Nonwork Purposes — Right to Wear Union Insignia Is Expanded

Reversing well established precedent, on December 11, 2014, the National Labor Relations Board (NLRB or the Board) held that employees that have been given access to their employers’ email systems, must be permitted to use...more

NLRB Reverses Board Precedent on Employer Email Policies

On December 11, 2014, a divided National Labor Relations Board (NLRB) - split along party lines - overturned existing precedent regarding an employer’s right to control its email system, and held that employees have a...more

NLRB Still “Likes” Expansive Employee Speech

Unlike many issues, it seems that at least one issue (so far) has the NLRB on the same page as a recent court decision: whether clicking “like” on Facebook amounts to substantive, protectable speech. In my earlier blog posts...more

Recent NLRB Decisions Condone Workplace Profanity and Insubordination - Employers Need to Know What Is Considered Protected...

An administrative law judge (ALJ) of the National Labor Relations Board (the "Board") recently found that a Hooters employee who cursed at her co-worker during an employee bikini contest was wrongfully terminated by her...more

NLRB's Recent Triple Play Decision Tackles Two Critical Social Media Issues for Employers

With the intersection between cutting-edge social media and the Depression-era National Labor Relations Act (NLRA or the Act) still relatively new, employers are looking for answers to some fundamental questions when it comes...more

Facebook "Like" Button - Protected Activity? It Depends on What You "Like"!

In an ever expanding arc of decisions that extends the NLRA’s protections to a wide range of employee conduct – both on-and off-duty, and in union and non-union settings alike – the NLRB last week decided that merely clicking...more

NLRB Expands Reach of NLRA by Finding Employee Who Sought Help From Coworkers For Her Sex Harassment Complaint Was Protected

In yet another case that impacts both union and non-union employers, the National Labor Relations Board (NLRB) recently found that an employee who asked coworkers for assistance in preserving evidence for a sex harassment...more

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