Termination The National Labor Relations Act

News & Analysis as of

In Fresenius, the NLRB Admits It Was Wrong . . . Sort Of!

On June 24, 2015, the National Labor Relations Board (NLRB) issued a new decision involving allegations that an employer had unlawfully discharged an employee who had scrawled sexually-oriented obscenities and threatening...more

NLRB Says Employer Cannot Rescind Contract for Employee Who Wrote Complaining Email to Co-Workers

As previously reported in EmployNews, recent National Labor Relations Board decisions have disrupted established guidelines with regard to employers’ obligations to tolerate uncivil and insulting behavior and comments from...more

Will the Second Circuit “Like” the NLRB’s Recent Stance on Social Media? An Update on the Facebook “Like” Firing Case

The NLRB last week filed its brief at the Second Circuit Court of Appeals in the well-publicized Facebook “Like” firing case, Three D, LLC v. NLRB. Prior to the appeal, we discussed the NLRB’s August 2014 ruling here as part...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

NLRB Says On-Line Planning For Insubordination Is Not Protected Concerted Activity

In Richmond District Neighborhood Center, Case 20-CA-091748 (Oct. 28, 2014), the Board upheld an Administrative Law Judge’s ruling that a conversation between two employees, who were involved with student programming at the...more

NLRB Upholds Employee Terminations for Facebook Rant

A few weeks ago, I wrote a blog post about the recent line of NLRB cases examining what constitutes “protected, concerted” activity in the context of employees engaging in profane, insulting, or disrespectful conduct or talk...more

NLRB “Unfriends” Employer Over Facebook “Like”

On August 25, the National Labor Relations Board found in Three D, LLC, d/b/a Triple Play Sports Bar and Grille v. Sanzone, Case No. 34-CA-012915, and Three D, LLC, d/b/a Triple Play Sports Bar and Grille v. Spinella, Case...more

How to Avoid Being the Next Casualty in the EEOC’s War on Employee Separation Agreements

In its current Strategic Enforcement Plan, the U. S. Equal Employment Opportunity Commission says that it is fed up with and will target employer “policies and practices that discourage or prohibit individuals from exercising...more

The Truth About As*holes

Here’s the truth: we are a litigious society. For a lot of reasons beyond the scope of this blog, a smarter workforce with ever-increasing access to information and resources continues to file employment lawsuits in record...more

NLRB Considers Radical Changes to Decades-Long Precedent on Deferral to Arbitration

In yet another attempt to expand protection for employees under Section 7 of the National Labor Relations Act, the National Labor Relations Board (NLRB) is considering a new standard for deferral to labor arbitration that, if...more

No Love For No Gossip Policy

A National Labor Relations Board (NLRB) Administrative Law Judge (ALJ) recently concluded that an employer violated the National Labor Relations Act (Act) by implementing a "no gossip policy" and by firing an employee who...more

Some Firings Based on Social Media Use May Be Okay

In early November, an administrative law judge of the National Labor Relations Board dismissed a complaint filed against an employer, finding that the employer did not violate the National Labor Relations Act by withdrawing...more

NLRB: Employee’s Outburst In Calling Manager “Trouble” Not So Egregious As To Render Conduct Unprotected

A theme we have followed here with interest is protected concerted activity, and what kinds of conduct might render otherwise protected activity “unprotected.”...more

Twitter: Employee Who Complained about Sexual Harassment via Twitter Fired

Adria Richards is a self-described “endlessly enthusiastic technology evangelist.” While attending a large technology conference in Santa Clara, California, Ms. Richards overheard two men sitting behind her making a series...more

Facebook Postings Showing Misuse of FMLA Leave Can Form Sufficient Legal Basis of Termination

Based on the number of social media decisions from the National Labor Relations Board over the past two years, most employers understand that when employee Facebook postings constitute “protected activity” under the National...more

Tweet, Follow, Or Get Out Of The Way: What All Employers Need To Know About Social Media In The Workplace

Facebook. Twitter. LinkedIn. YouTube. Blogs. Email. Texts. Social media in the workplace has become a fact of life for all employers. Companies are learning that these once feared social media sites can be powerful marketing...more

NLRB Orders Reinstatement of Employees Fired Over Discussion on Facebook

In Hispanics United of Buffalo, Inc., 359 NLRB No. 37 (Dec. 14, 2012), the National Labor Relations Board (NLRB) found that an employer violated section 8(a)(1) of the National Labor Relations Act (NLRA) by firing five...more

What Would Jesus Do?

On January 25, 2013, Chelsea Welch, a server at a St. Louis Applebee’s, was terminated from her position after posting online a photograph of a note a customer wrote on a receipt. The note, left by a Missouri-based pastor,...more

The Dangers Of Social Media And Employee Discipline

As if compliance officers do not have enough on their plates. I have written about this before – the risks of interfering with employees’ “protected activity” on social media. What a nightmare and what a maze of confusion!...more

NLRB Issues Pair of Decisions Limiting Employer Discipline and Policies Regarding Social Media

The National Labor Relations Board (NLRB) recently issued a pair of decisions helping to clarify the limits on employers’ ability to (1) discipline employees for their social media activities and (2) implement confidentiality...more

NLRB: Use of Social Media Can Be Protected Employee Activity

The rise of social media has led to the application of old law to new forms of communication. For instance, an effort by the National Labor Relations Board to educate workers on their right to engage in protected concerted...more

Sixth Circuit Rules Employers Can Avoid Fiascos Like Romney’s “47%” Recording by Banning Secret Recordings in the Workplace

With President Obama’s inauguration next week, I am reminded of the surreptitious recording that played a significant role in the final weeks of his campaign last year—the infamous “47%” recording. Secret recordings can have...more

What Some Would Call Harassment, The NLRB Calls Protected Concerted Activity

Last month, the National Labor Relations Board (NLRB) issued its latest opinion on the scope of employees’ Section 7 rights while posting on social media sites like Facebook. Hispanics United of Buffalo, which involved the...more

NLRB Confirms that Comments Posted on Social Media May Be Entitled to Protection

The National Labor Relations Board (NLRB) recently issued a significant decision - solidifying the position it has staked out over the past 18 months - that an employee’s posts on social media may be entitled to protection...more

NLRB Sides with Employees Fired over Facebook Posts

In its second opinion addressing employee terminations resulting from Facebook posts, the National Labor Relations Board (NLRB) has ordered an employer to reinstate five employees terminated for posting Facebook comments in...more

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