The National Labor Relations Board 2012 Year in Review

by McNees Wallace & Nurick LLC
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Introduction

Wow, 2012 was quite the year for the National Labor Relations Board (“Board”)!  Last year, we discussed the Board’s agenda, which at the time we described as aggressive, but with the benefit of hindsight, describing the Board’s activity in 2012 as aggressive is like saying the Super Bowl Champion Baltimore Ravens are a good football team, true enough but certainly understated. 

First, some hard statistics:  In 2011, the Board saw a 17 percent increase in filings as compared to the prior year, which included both unfair labor practice charges and representation cases.  During the past federal fiscal year (October 1, 2011 through September 30, 2012), the Board issued 341 decisions, a number slightly lower than the 368 issued the prior year.  But do not let that comparison fool you; the Board was still hard at work, with the number of pending cases at the end of fiscal year 2012 at an all-time low.  The Board has also proudly claimed a 91% settlement rate in meritorious unfair labor practice cases, and a 90% win rate (in whole or in part) in cases litigated before Board Judges during the past fiscal year.

Turning to more substantive issues, while the Board did not initiate any further rulemaking procedures in 2012, its two such initiatives begun in 2011 saw significant developments in early 2012.  Unfortunately for the Board, but fortunately for non-union employers, neither of the Board’s rulemaking initiatives have been successfully implemented to date.  As will be discussed in further detail below, the first Rule, adopted in-part by the Board in December 2011, modified certain procedures governing representation elections.  The Rule became effective on April 30, 2012, but was successfully challenged and subsequently invalidated by a federal district court.  The second Rule, promulgated in February 2011, would have required all employers covered by the National Labor Relations Act (“Act”), both non-unionized and unionized, to post a Notice of Employee Rights, which outlined certain employee rights under the Act, such as the right to organize, the right to strike and picket, the right of non-unionized employees to engage in concerted activities, etc.  This Rule has been enjoined by the U.S. Circuit Court of Appeals for the D.C. Circuit, pending the outcome of the Board’s appeal from a district court’s nullification of the Rule. 

The Board did seem to focus more on decisional law in 2012, and continued certain trends established in 2011.  Please keep in mind that many of the Board’s decisions interpreting the Act impact all employers, both union and non-union employers alike.  Some of the trends have led to dramatic results, including the overturning of well-established precedent and a decided interest in examining issues involving social media.  Put quite simply, the Board’s trends have not been employer-friendly.  The Board has expanded its sights and has begun examining other employer policies, beyond the social media context.  Indeed, rarely these days does the Board seem to find an employer policy it deems lawful. 

We reported extensively on the Board’s initiatives, and the impact those activities will have on employers, in our blog throughout the year.  For your convenience, we have provided an overview of the more significant decisions and actions of the Board below, and have included further detail regarding the Board’s rulemaking activities.

New Challenges to Board’s Authority to Act

At the outset, it’s important to note that the Board’s very authority to act has again been challenged.  In January 2012, President Obama made three “recess” appointments to the Board, Democrats Richard Griffin and Sharon Block, and Republican Terrance Flynn.  (Such recess appointments allowed the President to avoid a Senate confirmation battle, and certainly one could agree that recess appointments are generally not the most appropriate way for a president to fill vacancies that normally require Senate confirmation.)

Soon after these recess appointments were made, however, legal challenges were filed in several federal courts challenging their validity, claiming that the Senate was actually not in recess at the time President Obama named the three Interim Members to the Board on January 4, 2012.  There are several U.S. Courts of Appeal that are, as of this writing, considering these issues.  Their decisions could have significant implications for the validity of most of the decisions issued by the Board in 2012.  As of December 16, 2012, the term of lone Republican Board Member Brian Hayer expired, leaving the Board with only three Members, only one of whom had actually been confirmed by the Senate.  You may recall that in 2010, the U.S. Supreme Court had invalidated a number of Board decisions, holding that a two-Member Board cannot act as a lawful quorum.  New Process Steel v. Nat’l Labor Relations Bd., 560 U.S. _______, 130 S. Ct. 2635 (2010).  If President Obama’s January 2012 recess appointments to the Board were declared unlawful, that would mean that the Board lacked the three-Member quorum to do business as required by the statute and the Supreme Court’s New Process Steel decision.

Indeed, that is exactly what has come to pass, as on January 25, 2013, a three judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, unanimously found that the President had violated the U.S. Constitution by improperly appointing the three Interim Members when the U.S. Senate was not, according to the Court, actually in recess.  Noel Canning v. Nat’l Labor Relations Bd., 194 LRRM 3089 (D.C. Cir. 2013).  The Court found that the Board had therefore lacked a three-Member quorum, as required by New Process Steel, and that as a result, the Board’s Decision finding Noel Canning to have committed unfair labor practices was declared null and void.

Now there are other U.S. Courts of Appeals also considering the same issues regarding the validity of the January 2012 recess appointments, and ultimately it may again be up to the U.S. Supreme Court to determine whether the Board had proper authority in 2012 to issue the hundreds of decisions that it issued.  The Noel Canning decision has continuing ramifications for the Board in 2013, because, of the three Members currently sitting on the Board, only the Chairman, Mark Pearce, was confirmed by the Senate.  This means that if Noel Canning is upheld as the law of the land, not only will all or virtually all of the Board’s 2012 Decisions be invalid, so too will its decisions for 2013!

So, you the reader may ask “should I stop reading at this point?  Why do I care what the Board did in 2012 if its decisions will all be declared invalid?”

First, we don’t yet know if the D.C. Court’s Noel Canning opinion will be affirmed by the Supreme Court.  Secondly, we know that the last time the Board was found to have lacked a proper quorum in 2010 (New Process Steel), the Board (after subsequently being repopulated by confirmed appointees) revisited and resolved more than 600 cases, almost always agreeing with the earlier determinations (meaning that it is still worthwhile for you the reader to labor through the rest of this article)!

Further Update on the Board’s Rulemaking Initiatives

As noted above, the Board had undertaken two unusual rulemaking procedures in 2011.  The first rulemaking initiative, which became effective on April 30, 2012, changed the Board’s pre- and post-election representation case procedures.  The so-called “Quickie Election” Rule would have reduced the potential time period between the filing of a petition for election and the date for conducting the election, which would be detrimental to employer campaign efforts.  However, the Rule was invalidated by a federal district court in Chamber of Commerce, et al. v. Nat’l Labor Relations Bd., 193 LRRM 2316 (D.D.C., No. 11-CV-2262, 5/14/12).   

The other initiative, which would have required all employers covered by the Act to post a Notice of Employee Rights under the Act, was challenged in several federal courts.  The Board’s implementation of that rule is currently on hold pending a decision by the U.S. Court of Appeals for the District of Columbia1.  Oral argument was held in late 2012 and a decision is expected in early 2013.   

The Board’s Significant Decisions

A summary of the Board’s key 2012 decisions is provided below.

a. Employers Prohibited from Requiring Confidentiality Regarding Workplace Investigations

The Board sent shockwaves through the employer community when it issued a surprising and unsettling decision holding that an employer violates the Act by establishing blanket workplace investigation procedures, policies, or forms that attempt to prohibit employees from discussing ongoing workplace investigations with their coworkers. Specifically, the Board concluded that such a rule violates Section 7 of the Act, which protects employees’ rights to engage in “concerted activities” for their mutual aid and protection.

In Banner Estrella Medical Center, 358 NLRB No. 93 (2012), the employer established a standard investigation process that included the reading of six introductory statements before each witness interview. One of the six statements was a confidentiality statement instructing the witness that he or she was prohibited from discussing matters related to the investigation until the investigation was complete. The Board determined that the employer failed to establish that its interest in protecting the integrity of the at-issue investigation outweighed the employees’ Section 7 rights because the employer developed a “blanket approach” of reading this statement before every interview. The Board explained that it is the employer’s burden to determine – on a case-by-case basis – whether the circumstances of each specific investigation are such that (1) witnesses need protection, (2) evidence is in danger of being destroyed, (3) testimony is in danger of being fabricated, or (4) there is a need to prevent a cover up. Only when one of these concerns is present will the employer’s interest in protecting the integrity of the investigation outweigh the employees’ Section 7 rights.

As a result of this decision, it would be prudent for all employers – union and non-union – to review their investigation policies, procedures, and forms to ensure that they cannot be interpreted as creating a blanket prohibition against employee discussion of workplace investigations.  We suggest that any written policy regarding the confidentiality of investigations be removed from your records or modified to explain that the employer may, at its own discretion, designate an investigation as confidential based on legitimate business needs.  Consider each case individually and where you believe that one of the conditions noted above exists, you may implement the policy and tell employees as much.  Confidentiality may still be invoked, but employers will need to be more discerning about its use.  The Banner Estrella case has been appealed by the Medical Center to the U.S. Court of Appeals for the D.C. Circuit. 

b. Employers Required To Bargain over Disciplinary Decisions Where No Grievance Procedure Exists

In a decision that resolved the last of the outstanding two-member cases returned following New Process Steel, the Board found that where there is no collectively-bargained grievance-arbitration system in place, employers generally must give the union notice and an opportunity to bargain before imposing employee discipline such as a discharge or suspension.  The Board was careful to note in Alan Ritchey, Inc., 359 NLRB No. 40 (2012), that its decision would apply only in those situations where a union has recently been certified as a bargaining representative, and where the parties have not yet reached agreement on a first collective bargaining agreement or an interim grievance-arbitration process. 

The Board held that employee discipline is a term and condition of employment, and a mandatory subject of bargaining. The Board noted, however, that employee discipline warrants special consideration. The Board’s decision only applies to “discretionary” disciplinary action that will impact the terms and conditions of employment, typically suspension, demotion and discharge.  Discipline is discretionary if management retains the right to determine the appropriate level of discipline within its sole discretion, and the discipline is not part of a no fault disciplinary or other lockstep progressive disciplinary policy. 

The Board also held that an employer need not negotiate to agreement or impasse under these circumstances, but instead, must provide the union with notice of its intention to issue discipline, the nature of the discipline, the information leading to the decision, and offer the union the opportunity to bargain in good faith before issuing the disciplinary action.  If there is no agreement, then the bargaining obligation continues after imposition of the discipline.  The Board also carved out an exception and held that the notice and opportunity to bargain prerequisite is not necessary in exigent circumstances, such as where an employee’s presence in the workplace presents serious and imminent danger to the employer’s business or other employees. 

The Board also held that, because this issue was not previously decided, its decision would be prospective in nature.

c. Elimination of Key Bargaining Tool by Requiring Employers to Collect Union Dues after Expiration of Agreement

In accordance with its decision in Bethlehem Steel, 136 NLRB 1500 (1962), the Board has long held that an employer’s obligation to collect union dues from employee wages terminates upon the expiration of a collective bargaining agreement.  In December, the Board reversed that 50 year old precedent!  The Board held in WKYC-TV, 359 NLRB No. 30 (2012), that an employer may not unilaterally discontinue dues check off provisions after the expiration of collective bargaining agreements. The Board stated that its decision to reverse its longstanding precedent was prompted by concerns raised by the Ninth Circuit Court of Appeals in an unrelated case that had been ongoing for over 15 years. 

Now, like most other terms and conditions of employment, employers must maintain the status quo upon the termination of a collective bargaining agreement with regard to dues check off provisions.  This “status quo” must be maintained until either a new agreement or bargaining impasse has been reached.

In reaching its decision, the Board emphasized the general rule that employers must maintain the status quo with respect to mandatory subjects of bargaining upon the expiration of a collective bargaining agreement.  The Board concluded that there was no basis to exclude a dues check off provision, which is also considered a mandatory subject of bargaining.  The Board reached this decision despite the fact that other exceptions exist, and that for 50 years, dues check off provisions were deemed to fit within those exceptions. 

While the Board was careful to note that its decision in WKYC-TV would apply prospectively, this decision will have a significant impact on employers in the context of collective bargaining.  Suspending a dues check off provision was a significant weapon in the employer’s arsenal that has now been silenced unless and until the Board’s decision is reversed by a federal appellate court. 

d. Employers Required to Compensate Employees Who Pay Extra Taxes on Backpay Awards

In Latino Express, Inc., 359 NLRB No. 44 (2012), the Board began by noting that it was required to periodically revisit and revise its remedial orders “drawing on enlightenment” obtained through experience.  The Board went on to hold that employers will be required to compensate employees for any extra income taxes they have had to pay as a result of receiving a backpay award spanning more than one year in a lump sum.  The Board also held that it will require an employer ordered to pay back wages to file with the Social Security Administration a report allocating the back wages to the years in which they were or would have been earned.

The Board noted that the additional reimbursement and reporting requirements better serve the remedial purposes of the Act by ensuring those who suffer discrimination are truly made whole for their losses.  While the Board’s decision in Latino Express involved employees discharged due to alleged anti-union animus, the Board expressly stated that the additional remedial requirements would apply to all violations that result in a make whole remedy. 

e. Protection of Union Political Spending

In United Nurses & Allied Professionals (Kent Hospital), 359 NLRB No. 42 (2012), the Board (with Member Hayes dissenting) appeared to significantly narrow the scope of the U.S. Supreme Court decision in Communication Workers v. Beck, 487 U.S. 735 (1988).  The Court in Beck held that the Act does not permit a union, over the objection of nonmember employees, to expend funds collected from employees under a union-security (or “union shop”) provision on activities unrelated to collective bargaining, contract administration, and grievance adjustment.  Under Beck, lobbying expenses incurred by the union were not chargeable to non-union members in the bargaining unit who objected. 

However, in Kent Hospital, the Board held that lobbying expenses are chargeable to objectors, to the extent that they are germane to collective bargaining, contract administration, or grievance adjustment. How lobbying could be germane to any of these activities is unclear to us, but the Board has paved the way for unions to charge these expenses to nonmember objectors despite the seemingly clear holding in Beck.  (The Board itself was apparently unclear on how lobbying could be germane to these activities, and invited input from interested parties on how it should define and apply the “germaneness” standard in the context of lobbying.)

f.  The Board Finds Certain Arbitration Agreements Unlawful

Early in 2012, the Board ruled that arbitration agreements that require employees to pursue individual claims violate the Act.  In D.R. Horton, Inc., 357 NLRB No. 184 (2012), the Board examined an employer policy that required mandatory arbitration of employee claims on an individual basis, and specifically prohibited class or collective actions.  The Board held that such a policy or agreement prohibits employees from engaging in concerted activity in violation of the Act.  The Board noted that its decision does not require class arbitration, as long as the policy or agreement leaves open a judicial forum for class or collective claims. 

Relying on D.R. Horton, a Board Administrative Law Judge (“ALJ”) similarly concluded that a policy requiring all employees to pursue individual claims, rather than collective actions, and that prohibited employees from discussing their claims violated the Act.  In 24 Hour Fitness USA, Inc., (Case-20-CA-035419) (2012), the ALJ concluded that, even though the policy at issue afforded employees the opportunity to “opt out” of the arbitration requirement, it was nonetheless unlawful.  The ALJ directed the employer to rescind the policy.  Stay tuned, as D.R. Horton has been appealed to the U.S. Court of Appeals for the Fifth Circuit.

g. The Board Requires Employers to Disclose Witness Statements to the Union

In Piedmont Gardens, 359 NLRB No. 46 (2012), the Board reversed 34 years of precedent by holding that the employer will now be required to provide a union representing an employee with witness statements obtained during an investigation of employee misconduct.  Overruling the 1978 Anheuser-Busch doctrine, the Board now requires a “balancing test” between the union’s need for the information (weighed heavily by the Board) and the employer’s legitimate and substantial confidentiality interest (weighed not so heavily by the Board).  The present Board is apparently not as concerned about the potential for intimidation, coercion, and retaliation that might flow from disclosure of witness statements to the union as was the Anheuser-Busch Board.  And in another dramatic change related to union requests for information, in Iron Tiger Logistics, Inc., 359 NLRB No. 13 (2012), the Board held that employers must respond promptly to union requests for information, even when the information requested may ultimately be irrelevant to the union’s representation of employees!

The Board Continues its Social Media Agenda

Last year, we discussed with you the Board’s aggressive social media agenda.  Unfortunately, the Board’s rigorous review of cases involving discipline for social media activity continued in 2012.  In addition, the Board was very active in reviewing employer social media policies, and in the vast majority of cases found that those policies violated the Act.  While the news was not all bad, the Board’s social media cases have signaled a disturbing trend for employers. 

The Board’s Acting General Counsel (“AGC”), Lafe Solomon, may be credited with starting the social media blitz.  The AGC followed up his first social media summary with two new social media reports in 2012.  Unfortunately, the Board has seemed to agree with its AGC’s negative views of employer social media policies in most cases.  Below is a summary of the key decisions involving social media and a summary of the AGC’s guidance in this area. 

a. Discharge over Facebook Page Found Lawful

Last year we reported on an ALJ decision involving an employee who was discharged for posts he made on his Facebook page. On September 28, 2012, the Board affirmed the ALJ’s decision in Knauz Motors, Inc., 358 NLRB No. 164 (2012).  Knauz Motors discharged an employee because of certain Facebook posts made by the employee. The first included “mocking and sarcastic” pictures and comments about a sales event. Apparently, the employee was dissatisfied with the food selection for the event, which included hot dogs and water. The ALJ found that since the food choices could impact the employee’s commissions, which were a term and condition of his employment, the pictures and mocking comments constituted “concerted protected activity” under the Act, and were therefore protected. 

The ALJ and the Board took a different view of the second set of Facebook posts, which contained pictures and comments making fun of an accident at a related dealership. The accident involved a 13-year-old boy who was behind the wheel of a vehicle that crashed into a retaining pond. The employee posted pictures of the accident and made some inappropriate comments. The Board affirmed the ALJ’s conclusion that these posts did not constitute concerted protected activity, because there no was connection to the employee’s terms and conditions of employment. Ultimately, the ALJ and the Board held that the employee’s discharge was not a violation of the Act because he was terminated for the non-protected posts, and not the posts regarding the sales event.

The Board also agreed with the ALJ that some of the employer’s policies were overly broad in violation of the Act, including the employer’s Courtesy Policy. The Courtesy Policy provided:

Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image of the Dealership.

The Board (believe it or not) held that the prohibition on “disrespectful” conduct and “language which injures the image or reputation of the Dealership” could be reasonably construed by employees to prohibit protected activity, and therefore was deemed unlawful.

b. Discharge over Facebook Page Found Unlawful

Last year, we also reported on an ALJs decision in Hispanics United of Buffalo, Inc., 359 NLRB No. 37 (2012).  Hispanics United was the first ALJ decision regarding employee terminations for social media posts.  In December 2012, the Board made Hispanics United its second decision examining protected, concerted activity involving Facebook (following Knauz Motors).  The Board held that the employer, a small nonprofit organization in upstate New York, violated the Act when it discharged five employees for criticizing another employee on Facebook.  The Board majority stated that it was relying on established precedent to find that the activity was for employee “mutual aid or protection” within the meaning of Section 7 of the Act.

The employees who were discharged were discussing another employee who had often criticized the job performance of others.  One of those employees initiated a discussion of the criticism online, and several other employees vented in a thread.  The employees that responded essentially stated that the criticism was unfair because of staffing and other concerns.  The employee who was the target of the thread complained to the Agency’s executive director, and after an investigation, the employees who engaged in the discussion were terminated for violating Hispanics United’s harassment policy. 

The Board stated that to determine whether Section 7 rights are implicated, an employer must consider whether a mutual aid objective is “implicitly manifest from the surrounding circumstances.”  Such a vague and ambiguous standard will no doubt lead to more headaches for employers as they attempt to discern the meaning of the Board’s pronouncements in this case. 

c. The AGC Social Media Reports

In July 2011, the Board’s Office of General Counsel (“OGC”) issued three Advice Memorandums directing the dismissal of charges, and issued a social media report, summarizing its actions on several charges involving social media.  Six months later, in January 2012, the AGC issued a second social media report, which highlighted how quickly the issues surrounding social media in the workplace were developing.

According to the second report, the following common policy provisions may be unlawful because they “chill” employees’ rights under Section 7 of the Act:

  • Employees are prohibited from making disparaging comments about the company through any media, including online blogs, other electronic media or through the media.
  • Employees should generally avoid identifying themselves as the company’s employees, unless there is a legitimate business need to do so or when discussing terms and conditions of employment in an appropriate manner.
  • Insubordination or other disrespectful conduct and inappropriate conversations are subject to disciplinary action.
  • Employees are prohibited from using social media to engage in unprofessional communications that could negatively impact the company’s reputation or interfere with the company’s mission or unprofessional/inappropriate communications regarding members of the company’s community.
  • Employees are prohibited from disclosing or communicating information of a confidential, sensitive, or non-public nature concerning the company to anyone outside the company without prior approval of senior management or the law department.
  • Employees are prohibited from using the company’s name or service marks (trademark, copyright, logo, etc.) outside the course of business without prior approval of the law department.
  • Employees who identify themselves as employees of the company must expressly state that their comments are their personal opinions and do not necessarily reflect the company’s opinions.

In May 2012, the AGC issued his third report on social media. The third report summarizes the AGC’s view on seven social media policies’ compliance with Sections 7 and 8 of the Act.  The AGC made clear that policies that are ambiguous as to their application to Section 7 activity, and policies that contain no limiting language or context to clarify that the policy will not interfere with Section 7 rights, will be deemed unlawful. According to the third report by the AGC, the following social media policy provisions could “chill” employees’ rights and are unlawful under the Act:

  • Provision forbidding release of confidential customer, employee or company information;
  • Provision forbidding employees from publicly stating opinions about work satisfaction or dissatisfaction, wages, hours or work conditions;
  • Provision requiring information posted about the employer to be “completely accurate and not misleading;”
  • Provision preventing employees from posting photos, music, videos and quotes of others without obtaining owner’s permission;
  • Blanket provision preventing the use of employer’s logo or trademarks;
  • Blanket provision banning offensive, demeaning, abusive, or inappropriate remarks;
  • Provision instructing employees to think carefully before “friending” co-workers;
  • Provision instructing employees to report unusual or inappropriate social media activity;
  • Provision telling employees they should use internal resources rather that airing grievances online;
  • Provisions requiring employees to “avoid harming the image and integrity of the company” and banning “disparaging or defamatory” remarks;
  • Broad prohibition of social media use on “company time;”
  • Broad prohibition on employees communicating with the press; and
  • Broad prohibition on employees communicating with government agencies.

The third report also expressed the AGC’s view that “disclaimer” provisions that state that policies will be administered in compliance with Section 7 do not necessarily save an otherwise unlawful policy. 

The AGC did provide some guidance in the third report, and stated that the inclusion of examples of prohibited conduct could help clarify ambiguities.  In addition, certain disclaimer provisions may save an otherwise overly broad policy.  The following social media policy provisions were found to be lawful:

  • Provision encouraging employees to be suspicious and use caution when asked to reveal confidential information;
  • Provision requiring employees not to post product safety performance information;
  • Provision banning online harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace;
  • Provision requiring employees to seek permission before posting in the name of an employer or posting in a manner that could reasonably be attributed to the employer; and
  • Provision requiring employees to state that their postings are their own and do not represent employer’s positions, strategies, or opinions.

The third report also provided a sample social media policy that is lawful in the opinion of the AGC. 

Importantly, Section 7 applies to all employers covered by the Act regardless of whether an employer’s employees are represented by a union, and in September, the Board issued two decisions finding certain anti-disparagement policies to be unlawfully overbroad. These cases, and others, demonstrate that the Board seems to agree with the AGC’s view of social media issues.  Therefore, for the foreseeable future, the AGC’s guidance in this area should be given careful consideration. 

The Board’s Assault on Other Employer Policies

As detailed above, the Board has embarked on a crusade against allegedly overbroad social media policies. The AGC’s social media reports also cast a negative light on a host of employer policy provisions, many of which are not specific to social media.  This expansion beyond the realm of social media is a trend that we will be following in 2013.  Below is a brief review of two key policies that have already come under fire. 

a. Confidentiality Policies

The AGC’s social media reports took a dim view of employer confidentiality policies.  As noted above, the AGC found that a policy prohibiting employees from disclosing information of a confidential, sensitive, or non-public nature concerning the employer to anyone without prior approval was unlawful.  Certainly, many employers have such policies.  In the opinion of the AGC, such policies are overly broad and could be interpreted as prohibiting employees from discussing the terms and conditions of employment.  In order to decrease this perceived ambiguity, confidentiality policies should provide context and should clarify what information is confidential in order to avoid running afoul of the Act. In addition, a disclaimer may help an otherwise overly broad policy (i.e., a statement indicating that the policy is not intended to prohibit employees from sharing information with each other concerning their own wages, hours, and conditions of employment). 

b. At Will Employment Disclaimers

On October 31, 2012, the OGC issued two Advice Memorandums addressing at-will provisions in employee handbooks. In both cases, the OGC concluded that the specific at-will provisions could not reasonably be interpreted to restrict protected activity and, therefore, were permissible under federal labor law.

The OGC’s guidance followed a controversial decision earlier this year from an ALJ, which held that an at-will disclaimer adopted by an American Red Cross regional unit was unlawfully overbroad to the extent it conveyed that at-will status could never be changed. The Red Cross required employees to sign an acknowledgement that stated, “I further agree that the at-will employment relationship cannot be amended, modified, or altered in any way.” The ALJ found the language to be unlawful because it implied any concerted effort undertaken by employees to alter the at-will status would be futile. The ALJ’s ruling generated significant attention and raised concerns that more challenges to the at-will language commonly included in employee handbooks would follow. The OGC’s recent advice memos, however, provided welcome guidance and served to allay these concerns.

Conclusion

Like 2011, 2012 was a busy year for the Board.  Given the outcome of the election in November, we expect that trend to certainly continue in 2013, as will the Board’s decidedly pro union agenda. 

While the Board issued a flurry of decisions in 2012, because of the challenges to President Obama’s recess appointments, many of those decisions are, as of this writing, in legal jeopardy.  In addition, many of the Board’s controversial decisions have been appealed to the federal courts.  How the courts will handle the Board’s 2012 decisions is an issue to follow next year as well. 

We will, of course, keep you up-to-date on these important issues and other developments throughout the year on our blog!

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

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