Joshua Fox on Section 7

It’s Protected: NLRB Finds “Black Lives Matter” Insignia on Employee Uniform Constitutes Protected Activity Under Circumstances

The National Labor Relations Board (“NLRB”), in a 3-1 decision, held that an employee’s display on their work uniform of “BLM,” an acronym for Black Lives Matter, constituted protected concerted activity under Section 7 of...more

2/23/2024 / Administrative Law Judge (ALJ) , Black Lives Matter , Corporate Counsel , Employees , Employer Liability Issues , Employment Litigation , Employment Policies , NLRA , NLRB , Protected Activity , Race Relations , Section 7 , Uniforms

It Begins…NLRB Regional Director Targets Noncompetes in New Complaint

As recently foreshadowed, the National Labor Relations Board (“NLRB” or “Board”) now appears poised to weigh in on whether noncompete agreements, even those that may be legal under state law, violate the National Labor...more

10/4/2023 / Corporate Counsel , Employees , Employer Liability Issues , Employment Litigation , NLRA , NLRB , Non-Compete Agreements , Section 7 , State Labor Laws , Trade Secrets , Unions

Another One: The NLRB Revives Standard That Employees Are Protected When Advocating for Nonemployees

A slew of decisions that were pending before the National Labor Relations Board (“NLRB” or the “Board”) have been issued at the end of August, coming at the close of Member Wilcox’s term. In American Federation for Children,...more

9/5/2023 / Administrative Law Judge (ALJ) , Independent Contractors , NLRA , NLRB , Section 7

Stericycle Brings Us Full Circle

Late summer brings picnics, hiking, and general fun. It also brings a slew of NLRB decisions as the agency’s fiscal year comes to an end on September 30. One of the more highly-anticipated decisions concerns the lawfulness of...more

8/4/2023 / Boeing , Employee Handbooks , Employment Policies , Labor Law Violations , NLRA , NLRB , Section 7

No Limits: Non-Compete Agreements Next Up on NLRB General Counsel Chopping Block

Following the National Labor Relations Board’s (“NLRB”) highly-controversial decision in McLaren Macomb declaring most confidentiality and non-disparagement clauses in separation agreements to be unlawful, General Counsel...more

5/31/2023 / Corporate Counsel , NLRA , NLRB , NLRB General Counsel , Non-Compete Agreements , Non-Disparagement Provisions , Section 7 , Severance Agreements

UPDATE: NLRB Regional Director Issues Complaint Against USC, Pac-12, and the NCAA

On May 18, 2023, Region 31 of the National Labor Relations Board (“Board”) issued an unfair labor-practice complaint against USC, the PAC-12, and the NCAA for allegedly misclassifying college athletes as non-employees and...more

5/22/2023 / College Athletes , Employee Definition , Misclassification , NCAA , NLRA , NLRB , Non-Employees , Section 7

NLRB Flips (Again), Reinstates Context-Specific Standards For Employee Misconduct

On Monday, the National Labor Relations Board (“Board”) issued a decision making it riskier and more complicated for employers to discipline employees for abusive workplace conduct alleged to have arisen within the context of...more

5/9/2023 / Abusive Conduct Training , Employee Misconduct , NLRA , NLRB , Section 7 , Social Media , Wright Line Test

UPDATE: NLRB GC Abruzzo Makes Clear All Non-Disparagement and Confidentiality Clauses Are At Risk After NLRB’s McLaren Decision

Earlier this month, the National Labor Relations Board (“NLRB”) issued its decision in McLaren Macomb, 372 NLRB No. 58 (2023), holding that not only are most non-disparagement and confidentiality clauses signed by employees...more

3/27/2023 / Confidentiality Agreements , Contract Terms , NLRA , NLRB , Non-Disclosure Agreement , Non-Disparagement Provisions , Section 7 , Separation Agreement , Severance Agreements

We Knew This Was Coming: NLRB General Counsel Recommends Abandoning Workplace Rule and Confidentiality Rule Frameworks

As foreshadowed by the NLRB General Counsel’s August 2021 Advice Memorandum, the vacillating standard for the legality of employer handbooks and policies and confidentiality requirements during open employer-investigations...more

3/11/2022 / Boeing , Confidentiality Agreements , Corporate Counsel , Employee Handbooks , Employee Rights , Employer Liability Issues , Employment Policies , Labor Reform , NLRA , NLRB , NLRB General Counsel , Section 7

NLRB Majority: Employer May Continue “No Recording” Rule, Even After Unlawfully Applying it to Single Employee

In AT&T Mobility LLC , 370 NLRB No. 121 (2021), the NLRB majority (Members Ring and Emanuel) held that the Employer could lawfully maintain a workplace policy prohibiting its workers from recording conversations with their...more

5/18/2021 / Audio Recording , Corporate Counsel , Employee Handbooks , Employer Liability Issues , Employment Policies , NLRB , Protected Activity , Section 7

Employer’s Policies On Blogging, Solicitation and E-Mail Signature Blocks Lawful, NLRB Rules (For Now, Anyway)

Over the past few years, the National Labor Relations Board has frequently weighed in on employer’s workplace and employee handbook policies, examining whether an employer’s policy impacts employees’ rights under Section 7 of...more

4/13/2021 / Corporate Counsel , Employee Handbooks , Employee Rights , Employer Liability Issues , Employment Policies , NLRA , NLRB , Section 7

NLRB General Counsel Promises “Vigorous” Enforcement of Employees’ Rights to Engage in Workplace Advocacy Related to Social Issues...

On March 31, 2021, the NLRB’s Acting General Counsel Peter Ohr issued a Memorandum entitled “Effectuation of the National Labor Relations Act through Vigorous Enforcement of Mutual Aid or Protection and Inherently Concerted...more

4/7/2021 / Coronavirus/COVID-19 , Employer Liability Issues , Health and Safety , NLRA , NLRB , NLRB General Counsel , Section 7 , Social Justice Issues

Tesla and Musk Get a Shock from the NLRB – Tesla CEO Ordered to Delete Union Tweet and Eliminate Overly Broad Confidentiality...

In its March 25 decision, the NLRB unanimously held that: (1) Tesla violated the National Labor Relations Act (“NLRA”) after prohibiting employees from talking to the media; (2) Tesla did not violate the Act by calling...more

4/2/2021 / Administrative Law Judge (ALJ) , Collective Bargaining , Confidentiality Agreements , Elon Musk , Employee Rights , Employer Liability Issues , NLRA , NLRB , Section 7 , Tesla , Twitter , Unions

NLRB Finds Social Media Policies Lawful, Sheds Light on Impact of Boeing

As we have discussed before, several years ago, the Board instituted a significant paradigm shift in analyzing the lawfulness of employers’ handbook policies in relation to employees’ Section 7 rights, when it issued its...more

1/15/2021 / Administrative Law Judge (ALJ) , Boeing , Employee Handbooks , Employer Liability Issues , Employment Policies , NLRA , NLRB , Section 7 , Social Media , Unions

NLRB Holds that Leaflet Outlining Consequences for Threatening Workers Is Not Unlawful

In adopting the ALJ’s Recommended Order in S&S Enterprises, LLC d/b/a Appalachian Heating, Case No. 09-CA-235304, the NLRB found that a leaflet distributed by the employer during union organizing efforts, which stated that it...more

12/28/2020 / Administrative Law Judge (ALJ) , Anti-Harassment Policies , Employment Policies , Federal Labor Laws , Labor Relations , NLRA , NLRB , Protected Concerted Activity , Section 7 , Unfair Labor Practices , Union Leaflets , Union Organizers , Unions

Handbook Civility Rules Aimed at Preventing Toxic Work Environments Found Lawful by NLRB’s Division of Advice

The NLRB’s Division of Advice recently released a long-awaited Advice Memorandum (originally issued in February 2019, Chipotle Mexican Grill, Case 28-CA-229134 (Feb. 22, 2019)) concerning the validity of two workplace rules...more

12/2/2020 / Boeing , Civility , Employee Handbooks , Employer Liability Issues , Employment Policies , Government Investigations , NLRA , NLRB , Protected Activity , Reasonableness Factors , Section 7

NLRB: Members Of Trade Group Are Not “Employees” Covered By The NLRA

On September 11, 2020, a three-member National Labor Relations Board panel unanimously ruled that a trade group representing sign language interpreters did not violate Section 8(a)(1) of the Act by removing its members’ posts...more

9/24/2020 / Administrative Law Judge (ALJ) , Employee Definition , Employer Liability Issues , Employment Policies , NLRA , NLRB , Section 7 , Trade Associations , Unfair Labor Practices , Unions

NLRB Division of Advice Dishes Some Guidance With Respect to COVID-Related ULP Charges

The pandemic has thrown a number of obstacles at employers and employees as everyone attempts to navigate a novel situation. On August 13, 2020, the National Labor Relations Board (“NLRB”) Division of Advice (“Advice”), the...more

8/18/2020 / CARES Act , Collective Bargaining Agreements (CBA) , Coronavirus/COVID-19 , Duty to Bargain , Employer Liability Issues , Layoffs , NLRA , NLRB , Popular , Protected Concerted Activity , Section 7 , Unfair Labor Practices , Unions , Workplace Safety

NLRB Upends Context-Specific Tests for Profane Conduct, Folding Such Discipline Into Traditional Motivation Tests For Evaluating...

In another long-anticipated decision, on July 21, 2020, in General Motors LLC, 369 NLRB No. 127 (2020), the Board replaced three context-specific rules for determining whether certain abusive conduct committed by employees is...more

7/23/2020 / Anti-Discrimination Policies , Civil Rights Act , Employer Liability Issues , Employment Policies , NLRA , NLRB , NLRB General Counsel , Preponderance of the Evidence , Profanity , Protected Concerted Activity , Retroactive Application , Section 7 , Title VII , Totality of Circumstances Test

NLRB Division of Advice Releases Deluge of Advice Memoranda Discussing COVID-Related ULP Charges, Confidentiality Rules,...

On July 15, 2020, the National Labor Relations Board’s (“NLRB”) Division of Advice published 16 Advice Memoranda addressing myriad questions posed by various Regional Offices. While a majority of the Memoranda were drafted...more

7/22/2020 / Coronavirus/COVID-19 , Corporate Counsel , Employee Handbooks , Family and Medical Leave Act (FMLA) , Hiring & Firing , Infectious Diseases , NLRA , NLRB , NLRB General Counsel , Policy Memorandums , Protected Concerted Activity , Regulatory Standards , Section 7 , Unfair Labor Practices

NLRB Gives Green Light to Confidentiality Provisions in Individual Arbitration Agreements

In many private arbitration agreements entered into in the non-union context, employers and employees agree that the proceedings shall remain confidential. On June 19, 2020, the Board addressed whether a confidentiality...more

6/23/2020 / Administrative Law Judge (ALJ) , Arbitration , Arbitration Agreements , Boeing , Confidentiality Agreements , Employment Contract , Employment Policies , Epic Systems Corp v Lewis , Federal Arbitration Act , NLRA , NLRB , Section 7 , Workplace Investigations

Union’s Efforts to Scare Employees From Participating in Employer Investigations Rebuked by the Board

On June 5, 2020, the NLRB held, in Teamsters Local Union No. 735-S (Bemis Co., Inc.), 369 NLRB No. 97, that union officials’ retaliatory actions against members who participated in an investigation resulting in the discharge...more

6/10/2020 / Administrative Law Judge (ALJ) , Bargaining Units , Burden-Shifting , Bylaws , Corporate Counsel , Disciplinary Proceedings , Employment Litigation , Labor Relations , NLRA , NLRB , Protected Activity , Section 7 , Unions

NLRB: Policy Prohibiting Personal Cell Phones in Work Areas Due to Safety Concerns May Be Lawful under Boeing

As we previously suggested, the NLRB’s adoption of the Boeing standard for determining the lawfulness of employer’s workplace rules, policies and handbook provisions has provided significant fodder for interesting cases....more

6/1/2020 / Administrative Law Judge (ALJ) , Boeing , Coronavirus/COVID-19 , Employee Handbooks , Employer Liability Issues , Employment Policies , Infectious Diseases , NLRA , NLRB , Protected Concerted Activity , Section 7

NLRB Reaffirms Limitations on Employers’ Ability to Solicit Employee Assistance in Anti-Union Campaigning and Confidentiality...

In maintaining business as usual as best it can amidst the ongoing COVID-19 crisis, the Board recently decided an issue concerning limitations on employer campaign tactics, and an employer’s limits in restricting discussions...more

4/15/2020 / Administrative Law Judge (ALJ) , Confidentiality Policies , Corporate Counsel , Employer Liability Issues , NLRA , NLRB , Section 7

Employer’s Poll of Workforce Not Unlawful Mass Interrogation, NLRB Rules

When it comes to an unfair practice allegation asserting an employer’s statement is unlawful, words matter. And, so does context. Under NLRB case law, the actual employer statements are evaluated as well as the overall...more

3/6/2020 / Administrative Law Judge (ALJ) , Corporate Counsel , Employee Rights , Employee Training , Interrogations , NLRA , NLRB , Protected Concerted Activity , Section 7 , Temporary Employees , Unfair Labor Practices

Joshua Fox

Proskauer Rose LLP

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