News & Analysis as of

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

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

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

The Long Reach of the National Labor Relations Act

Non-union employers are often under the misimpression that they are not affected by the National Labor Relations Act (NLRA) — the federal statute governing union-related issues in the private sector. A recent court decision...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

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

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: 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

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

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

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

NLRB Rules Employer’s Termination of Non-Union Employees for Facebook Posts Violated NLRA

In another decision that affects non-union as well as union employers, the National Labor Relations Board recently ruled that comments posted on Facebook are protected in the same manner and to the same extent as comments...more

Board Affirms Decision Ordering Reinstatement Of Employees Terminated For Facebook Comments

On September 20, 2011, we reported on Hispanics United of Buffalo, Inc., the first National Labor Relations Board Administrative Law Judge decision examining an employee's discharge for social media activity. Recently, the...more

National Labor Relations Board Adds To Facebook Jurisprudence; Finds Posts To Be Protected, Concerted Activity

The National Labor Relations Board issued its first social media decision in September. Last week, the NLRB issued another social media decision in a case involving employees’ Facebook comments and an employer’s right to...more

NLRB: Discharging Non-Union Employee’s for Facebook Posts Violated NLRA

In September 2011, we alerted you to the decision in Hispanics United of Buffalo, a decision by a National Labor Relations Board (NLRB) Administrative Law Judge (ALJ) examining an employer’s termination of employees because...more

NLRB: Employees' Facebook Comments Are Protected Concerted Activity

The National Labor Relations Board’s closed out an already busy year addressing social media’s impact on employee rights in non-unionized workplaces (see our prior related blog entries here, here, here, and here) with yet...more

Termination for Facebook Posting Does Not Violate State Invasion of Privacy Law

Recent court decisions related to employees’ online postings have centered on whether disciplinary decisions regarding those postings may violate the National Labor Relations Act (NLRA). The NLRA protects certain employee...more

To Post or Not to Post – Are All Employee Facebook Comments Protected Under the NLRA?

On September 28, 2012, the National Labor Relations Board (“NLRB”) issued its first decision involving an employee fired because of a Facebook post. In this decision, the NLRB sided with the employer and held that the...more

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