Termination National Labor Relations Board

News & Analysis as of

The Second Circuit Tackles Employee Rights, Obscenities & Social Media Use

Employers took note last year when the National Labor Relations Board (NLRB) ruled that “liking” a Facebook post can qualify as protected activity under the National Labor Relations Act (NLRA). The NLRB held that the owner of...more

Employment Law - November 2015

Following California, New York Toughens Equal Pay Law - Why it matters: Following in the recent footsteps of California, New York Governor Andrew Cuomo signed into law the Achieve Pay Equality Act, providing greater...more

Second Circuit “Likes” Where NLRB Shakes Out on Social Media: Finds that Facebook “Likes” and Obscenity-Riddled Posts Were...

A unanimous panel of the Second Circuit recently upheld the NLRB’s well-publicized Facebook “Like” decision, which found that a sports bar violated the National Labor Relations Act when it terminated two employees for...more

Discipline Based on Social Media Activity – An Update

Social media is no longer trendy. It’s commonplace, and so is discipline imposed because an employee posts something inappropriate. According to a Proskauer survey, 70 percent of employers report taking disciplinary action...more

The California Fair Pay Act

California’s Fair Pay Act, which takes effect on January 1, 2016, prohibits private employers from paying male and female employees at different wage rates for substantially similar work. This standard is both more stringent...more

Facebook “Like” Protected Speech Under the NLRA

We all have them. Friends and family who overshare on Facebook. Their food choices (complete with pictures), exercise routine, and relationship drama, all solidified in the form of a status update. Annoying maybe, but mostly...more

How Not to Fire a Union Organizer

The best reminders often come from the most obvious situations. In a case decided by the Eleventh Circuit Court of Appeals on October 13, the employer laid down a clear path to remind employers what not to do. Allied...more

Be Aware of Public Employees Disciplinary Proceedings Protections: Loudermill, Wiengarten and Garrity

This post is primarily for public sector employers such as state agencies, municipalities and districts. By virtue of being employed by the government and quite likely represented by a labor union, public sector employees in...more

Under Construction - September 2015

Welcome to the fall edition of our Under Construction newsletter. The first article in this edition highlights the pros and cons of joint venturing on a construction project, and items to consider in preparing the joint...more

6th Circuit: Despite Misconduct, Terminating Complaining Employee Still a Problem Under Section 7

Ask any school teacher and they will tell you, the key to maintaining an orderly classroom is identifying the instigator. The "instigator" is the young boy or girl (let’s be honest, usually boy) who does or says something to...more

Disciplinary Investigations of Employees – Three Names to Know

Whenever an employer is considering disciplining an employee for misconduct, three names from 1967, 1975 and 1985 continue to be associated with employer investigations and interrogations, in much the same way that Mr....more

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

Aching Joints: Franchisor Avoids Liability for Franchisee's Labor Disputes

Any time an employer is involved in a franchise relationship, there are bound to be unique issues when legal disputes arise, particularly in the employment context. It is no longer surprising to see the names of any and all...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 determines vulgar Facebook posts protected concerted activity

The National Labor Relations Board (NLRB) determined that Pier Sixty LLC, a New York catering service, violated federal labor law by firing an employee server after he posted a Facebook message protesting supervisory abuse...more

NLRB to Re-Hear Labor Arbs

Another NLRB bombshell. The NLRB used to “defer” statutory issues to arbitration. For example, if an employer and union arbitrated the issue of an employee’s discharge for good cause, the NLRB would not then prosecute an...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

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

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

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

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