News & Analysis as of

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

NLRA Violation for Refusal to Allow Union Representation Prior to Drug Test

The National Labor Relations Board (NLRB or Board) recently held that an employer violated the National Labor Relations Act (NLRA) when it discharged an employee who refused to take a drug test without first consulting with...more

NLRB Finds That Employer Improperly Disciplined Employee Who Obscenely Grabbed His Crotch in Front of Female Co-Worker

On July 3, 2014, the National Labor Relations Board (NLRB) handed down a decision in the case of Consolidated Communications d/b/a Illinois Consolidated Telephone Co. and Local 702, Int'l Brotherhood of Electrical Workers,...more

NLRB Upholds Termination for Disclosure of Confidential Information, While Overturning Firing Based on Telling Co-Worker About...

Two May 30 decisions from the National Labor Relations Board demonstrate the continuing struggle between the NLRB and employers’ attempts to restrict employee discussion of sensitive business information. In one case, the...more

NLRB Upholds Discharge for Deliberate Betrayal, Despite Reliance on Unlawful Policy

The National Labor Relations Board recently issued a somewhat surprising decision that provides useful guidance to employers facing employee misconduct. In Flex Frac Logistics, LLC, the Board found that an employee's...more

Under the FLSA, the NLRB Says Even "Non-Concerted" Activity Can Be Concerted

My colleagues and I have noted repeatedly over the past couple of years that the National Labor Relations Board takes a very expansive view of the National Labor Relations Act, even (and perhaps especially) when the case does...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

Quirky Question #229, The Not-Clear-Cut Case for Canning a Cussing Worker

I’m the owner of a small record store. I have 13 sales clerks and 4 back room employees. Things aren’t great these days – but we get by. Fortunately, while people listen to music on their phones and the internet way more than...more

Unlawful Policy = Unlawful Termination? The NLRB’s Latest Pronouncement

The NLRB recently issued its decision in Flex Frac Logistics, LLC, Case 16-CA-02978, which the NLRB had remanded to the administrative law judge (“ALJ”) for further analysis after finding that the employer maintained an...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

Employee Fired For Facebook Rant Doesn't Like Status

There’s no doubt about it – Facebook is the 21st Century water cooler. Workers who used to gather in the break room to talk about the latest sports news, the newest outrageous celebrity scandal, or the latest office gossip...more

What 2013 Gifts will Employers be Enjoying well into 2014?

The holidays have come and gone. I hope everyone enjoyed them, and I hope everyone received the gifts and presents they asked for. I come from a big family—three siblings, 14 aunts and uncles, and nearly twenty cousins....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

NLRB Judge Rules Facebook Chatter Was Concerted Activity, But That Conduct Was Egregious Enough To Justify Employees' Termination

A National Labor Relations Board (NLRB) administrative law judge recently held that while two employees’ Facebook discussions were concerted activity under the National Labor Relations Act (NLRA), the particular conduct at...more

The Social Media Merry-Go-Round

I have posted before about National Labor Relations Board (NLRB)’s interest in social media, in several cases where employees were fired or disciplined after posting messages on social media sites critical of their employer...more

Employment Law -- Aug 13, 2013

EEOC Targets Cancer Discrimination - Filing two new lawsuits, the Equal Employment Opportunity Commission is cracking down on employers allegedly discriminating against workers with cancer. In Oklahoma the...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

U.S. Supreme Court Issues Two Key Title VII Rulings

On June 24, 2013, the Supreme Court of the United States issued two highly-anticipated decisions. In Vance v. Ball State University, the justices considered whether the “supervisor” liability rule established by Supreme Court...more

Employer Merely Granted Employee’s Wish To Be Terminated, NLRB Div. Of Advice Rules

Social media permeates society. It was inevitable that the increased use of smart phones and various communications platforms such as Facebook and Twitter would clash with the workplace. We have noted several instances where...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

Fenwick Employment Brief - February 2013

In This Issue: *FEATURE ARTICLES - Cal Supreme Court Refuses To Immunize Employers In Mixed-Motive Discrimination Cases, But Significantly Limits Remedies - Manager's Bias, Public Policy, And Defamation...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

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