POSTED BY DEBORAH A. CATALANO ON JUNE 4, 2013

However, a break from the typical outcome occurred in May, 2013, when an NLRB Associate Counsel sent an Advice Memorandum to his Regional Director upholding the firing of an employee who had made derogatory remarks about her job in a group message on Facebook. In Tasker Healthcare Group d/b/a Skinsmart Dermatology, NLRB Div. of Advice, No. 4-CA-94222 (May 8, 2013), the group of ten individuals included seven current and three former Skinsmart employees.

Initially, the postings involved a social event. Then, one of the current employees commented on a conversation she had with a supervisor where she told the latter to "back the freak off." The employee went on to say that certain supervisors "are full of shit" and "FIRE ME . . . Make my day. . . .". No other current employees participated in this portion of the conversation. 

The next day one of the group's other current employees showed the conversation to the employer. Skinsmart fired the employee who made the derogatory comments. Following the termination, the employee filed an unfair labor charge, claiming her termination violated federal law. As expressed by the Associate Counsel: "[t]he Board's test for concert is whether the activity is engaged 'in with or on the authority of other employees, and not solely by and on behalf of the employee himself." In reviewing the claim, an Associate Counsel issued an Advice Opinion in which he characterized the employee's actions as "merely express[ing] an individual gripe" – as opposed to conveying "shared concerns."

Note that while the outcome in Skinsmart was favorable to the employer, it was because the employee's postings failed to include communications showing any "shared employee concerns," such as wages, work schedules, and or "other terms and conditions of employment."

POSTED BY SCOTT T. SILVERMAN ON APRIL 29, 2013

The memorandum was issued regarding Verso Paper's Code of Conduct, which states in relevant part: 

"Verso has a compelling interest in protecting the integrity of its investigations. In every investigation, Verso has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up. To assist Verso in achieving these objectives, we must maintain the investigation and our role in it in strict confidence. If we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination."

The Office of General Counsel concluded that because the policy purported to apply to every investigation, it ran afoul of Banner Health, which requires that an employer must show more than a generalized concern for the integrity of its investigations and must demonstrate a particularized need for confidentiality on a case-by-case basis. However, in a footnote, the Office of General Counsel stated that the first two sentences lawfully set forth the employer's interests, and suggested that the policy could be lawfully amended by striking the next two sentences and inserting the following language: "Verso may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence. If Verso reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action."

The Advice Memorandum reaffirms that employers may not maintain blanket rules of confidentiality as to all investigations.  Rather, employers must tell employees that confidentiality directives will only be issued in particular circumstances where the employer has determined it to be necessary.   Accordingly, employers with confidentiality policies may wish to consider revising them to comply with this Advice Memorandum.

POSTED BY SCOTT T. SILVERMAN ON FEBRUARY 5, 2013

Recently, an Administrative Law Judge (ALJ) for the National Labor Relations Board (NLRB) issued a decision in Quicken Loans, Inc., which found confidentiality and non-disparagement provisions to be unlawful under the National Labor Relations Act (NLRA). The decision is not surprising, and is in accord with the trend of the NLRB to find common employer conditions to violate the NLRA.  

When Quicken Loans sued former employees for asserted violations of a "Mortgage Banker Employment Agreement," which all mortgage bankers had signed during their employment, one of the defendants filed an unfair labor practice charge, alleging that certain provisions of the Agreement violated the NLRA. Specifically, the former employee challenged a provision that required employees to "hold and maintain all Proprietary/Confidential Information in the strictest of confidence" and stated that employees could not "disclose, reveal or expose any Proprietary/Confidential Information to any person, business or entity." The agreement broadly defined "Proprietary/Confidential Information" to include "any non-public information relating to or regarding the Company's . . . personnel," including "personal information of co-workers . . . such as home phone numbers, cell phone numbers, addresses, and email addresses" as well as "personal financial information, . . . background information, personal activities, information pertaining to work and non-work schedules, contacts, meetings, meeting attendees, [and] travel[.]" In addition, the former employee asserted that a provision, which prohibited employees from "publicly criticiz[ing], ridicul[ing], disparag[ing], or defam[ing]" Quicken or its "products, services, policies, directors, officers, shareholders, or employees, with or through any written or oral statement or image (including . . . any statements made via websites, blogs, postings to the internet, or emails . . . )" was also  overbroad in violation of the NLRA

The ALJ concluded that the two provisions at issue violated the NLRA because they "would reasonably tend to chill employees in the exercise of their Section 7 rights." The first provision would have unlawfully prevented employees from discussing with others, including fellow employees or union representatives, the wages and other benefits that they receive and the names, wages, benefits, addresses or phone number of fellow employees.  As these types of communications are protected by the NLRA, the provision was unlawful.  Further, the provision that prohibited public criticism of the employer violated the employees' protected concerted rights under the NLRA to make public statements against the employer and its products in order to appeal to the public, or their fellow employees, to gain support. 

But, what was the impact of this decision?  The ALJ ordered Quicken to cease and desist from maintaining these provisions and to notify its mortgage bankers that the provisions would not be enforced.  Further, Quicken was required to notify employees that it would not prohibit discussions of terms and conditions of employment, as protected by the NLRA.  Effectively then, Quicken' s lawsuit, at least as to these two provisions, was terminated, because Quicken would be in violation of the Order if it were to continue to pursue the asserted violations.

The case demonstrates that it is not enough for employers to simply examine their social media and other policies for compliance with the NLRA.  Rather, employers must re-examine all of their employee agreements to identify any that may be overbroad.  Employers may then need to have employees sign revised agreements in accordance with the applicable state law or be subject to having enforcement barred. As I will discuss at the Akerman Annual Labor & Employment Law Seminar, the NLRA has definitely invaded the non-union workspace.

POSTED BY SCOTT T. SILVERMAN ON JANUARY 29, 2013

The United States Court of Appeals for the District of Columbia Circuit issued an order on January 25, 2013, which struck, as unconstitutional, President Obama's recess appointments to the National Labor Relations Board ("NLRB"). Noel Canning v. NLRB (Case No. 12-1115) Typically, recess appointments to the NLRB,  pursuant to the Recess Appointments Clause of the Constitution, are made during Senate recess.  In its Opinion, the D.C. Circuit Court held that because the appointments at issue were not made during the intersession recess (the President made his three appointments to the Board on January 4, 2012, after Congress began a new session on January 3 and while that new session continued), these appointments were invalid from their inception. Therefore, because the Board lacked a quorum of three members when it issued its decision in Noel Canning, the D.C. Circuit Court vacated the holding.

In response, Chairman Mark Gaston Pearce issued the following statement: "The Board respectfully disagrees with today's decision and believes that the President's position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals. In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions."  

Regardless, this is a major development that could invalidate all NLRB decisions during the time in which President Obama's appointees were on the NLRB.  Below are summaries of the major decisions in 2012 that may be impacted by this ruling:

• In Hispanics United of Buffalo, the NLRB held that the discharges of five employees regarding posts made on Facebook violated the NLRA. The NLRB indicated that the Facebook posts and comments were protected under the NLRA because they concerned job performance, and because they involved the preparation of co-workers to defend against allegations of poor work performance.  

• In Costco Wholesale Corp. and United Food and Commercial Workers Union, Local 371, the NLRB held that Costco's policy prohibiting employees from making statements that "damage the Company, defame any individual or damage any person's reputation" violated the NLRA.  The NLRB reasoned that the policy was broad enough to chill employee rights under the NLRA.

• In WKYC-TV, Inc., the NLRB overruled fifty years of its own precedent holding that a union dues check-off provision in a collective bargaining agreement, which provides for the automatic deduction of union dues from unionized employees' paychecks, survives the expiration of a collective bargaining agreement.  

• In D.R.Horton, Inc., the NLRB held that it is a violation of federal labor law to require employees to sign arbitration agreements that prevent them from joining together to pursue employment-related legal claims in any forum, whether in arbitration or in court. Employees cannot be asked to waive a judicial form and to not bring class or collective claims in arbitration. Arbitration may be individual, as long as judicial forum is open to class or collective actions, or judicial may be prohibited as long as class and collective arbitration is open.  

• In Latino Express, the Board decided to require respondents to compensate employees for any extra taxes they have to pay as a result of receiving the backpay in a lump sum. The Board will also 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.

• Finally, in Banner Health System, the Board held that an employer's policy of asking its employees involved in an investigation into an internal complaint to its human resources division to refrain from discussing that ongoing investigation with co-workers, violated the NLRA.  The NLRB held that this policy was overbroad and violated employees' rights under Section 7 of the NLRA because it prevented employees from discussing discipline and investigations of discipline.

POSTED BY ASHLEIGH BHOLE ON NOVEMBER 21, 2012

Now that the frenzy of the election has died down, Florida has counted its votes, and the major media outlets have moved on from dissecting party rhetoric, the question remains: What does President Obama's reelection mean for the country?  And for the purposes of employers and those in HR, what changes will we see in his second term in labor and employment law?  The simple answer is that labor and employment law is likely to be a very active area for change just as it has been over the past four years: the Department of Labor will continue to flex its stronghold over employers, Democrats will push for new employee-favored legislation and the Republicans will shut it down in the House.  If the parties can come to a compromise on some new legislation and governmental agencies maintain their status quo, the following areas are just a few which will continue to actively move "forward" in the coming years: 

• Anti-Discrimination Laws for Women: Gender inequality was an issue in Obama's first term and will surely remain a priority in this term.  In January 2009, Obama signed into law the Lilly Ledbetter Fair Pay Act which effectively extends the time period in which employees can file a gender based wage discrimination lawsuit - the 180-day statute of limitations for filing a claim resets with each new paycheck affected by the alleged discriminatory action (as opposed to the statute of limitations beginning on the date the employer makes the initial discriminatory wage decision).  Obama has promised to keep gender inequality on his agenda with the continued advocacy of the Paycheck Fairness Act.  If enacted, this legislation, which amends provisions of the Fair Labor Standards Act will, among other things, (1) require employers to show that any wage discrepancies are based on a 'bona fide factor other than sex, such as education, training or experience,' (2) prohibit retaliation by employers against individuals who raise gender-based wage disparity issues and/or concerns, (3) expose employers to enhanced penalties for any such retaliatory conduct, and (4) provide for a negotiation skills training program for girls and women.  

• LGBT Rights: Obama has been a candid advocate for the rights of the LGBT community, most publicly through the support of same sex marriage.  However, his administration has pushed for changes in the way of LGBT rights in the employment arena as well.  The Employment Nondiscrimination Act is proposed legislation that adds sexual orientation to the protected classes under Title VII for all employers except religious organizations.  Currently, gay, lesbian, bisexual and transgender employees are not protected under Title VII by federal law or under the law of many states.  This Act has been discussed a lot, most recently the Senate Committee on Housing, Employment, Labor and Pensions held a hearing on the legislation, and it would not be surprising to see a push for the passage of this bill in the coming year.

• Increased Power for Organized Labor: In the last four years, Obama's appointment of members to the National Labor Relations Board (NLRB) has resulted in the Board's increased influence in the area of organized labor.  Under Section 7 of the National Labor Relations Act (NLRA), employees have the right to self-organize and engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection.  Because the NLRB has adopted a more expansive definition of "concerted activities," many employer policies and procedures have been questioned and the NLRB has issued numerous pro-worker opinions.  For example, in January 2012, the NLRB held that employers may not require their employees, as a condition of employment, to sign an agreement precluding them from filing joint, class or collective claims that address wages, hours, or other working conditions against the employer in any form, arbitral or judicial.  Then in July 2012, the NLRB declared unlawful an employer's policy of requesting employees to refrain from discussing all ongoing internal investigations with co-workers.  The NLRB claimed this action on the part of the employer to be an illegal restraint on non-supervisory employees' right to engage in protected concerted activity.  Finally, the Board more recently addressed social media policies in the context of concerted activity. On September 7, 2012, the NLRB issued its first decision concerning a specific employer's social media policy, determining that Costco Wholesale Corp.'s policy, which prohibited employees from electronically posting statements that "damage the Company . . . or damage any person's reputation" was impermissible under the NLRA as an unlawful restraint on protected concerted activity rights.  With the NLRB's momentum, don't expect these types of opinions, which significantly restrict employer policies, to slow down anytime soon. 

• Increased Regulation for Government Contractors – The Office of Federal Contractors Compliance Programs (OFCCP) has also been very active during the Obama administration and has pushed and will be promoting a regulatory agenda which seems to be more aggressive than ever before.  One of the OFCCP's regulatory proposals, which has been on the table since 2011, involves a disability utilization goal.  Essentially, the proposed regulation would require federal contractors and subcontractors to set a hiring goal to have 7% of each job group within their workforce to be comprised of individuals with disabilities. The OFCCP has also stated it wants to develop a new compensation data collection tool which would be used to identify pay discrimination. The tool would be used to, among other things, more efficiently investigate pay discrimination and provide insight into industry trends.  Expect for the OFCCP to push for these regulations now that Obama has been given another four years in office. 

This short summary reflects on only a few areas of employment law and is by no means an exhaustive list of the types of changes employers and HR should expect in the next four years.  One thing is for sure, whether or not you believe these expected changes are moving businesses "forward," with some very active government agencies and a president who has championed the expansion of civil rights for women, the LGBT community and the rights of workers, you can be sure to see significant movement  in the laws that affect business and their employees.

POSTED BY HEATHER L. MACDOUGALL ON OCTOBER 11, 2012

Two recent rulings by the National Labor Relations Board (Board) involving employees' use of social media make it clear that employers who want to avoid violating federal labor laws are well served to revisit their social media policies and, perhaps along with their counsel, take a close look at whether these policies violate the National Labor Relations Act (Act).  Although a September 28, 2012 ruling from the Board shows that not all employee social media posts will be considered protected by federal labor laws, this ruling and another recent ruling on September 7, 2012 leaves employers still unsure of where the agency draws the line.

While some employers may wrongly assume that the Act does not apply to their non-unionized workplaces, actually it does.  Section 7 of the Act governs both union and nonunion employees alike. It protects employees who engage in "other concerted activities for the purpose of … mutual aid or protection."  The Board has found that Section 7 grants rights to employees' use of social media. 

On September 7, 2012, the Board decided that Costco's employee policies were "too broad" when it came to the use of the Internet and social media. Specifically, the electronic communications rule found in Costco's employee handbook advises that company employees, "be aware that statements posted electronically (such as to online message boards or discussion groups) that damage the company, defame any individual or damage any person’s reputation or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment."  While the employer's policy might sound reasonable on the surface, the Board held that employees could interpret the policy as prohibiting activity that is protected under the Act. The Board stated that the employer's policy "does not present accompanying language that would tend to restrict its application. It therefore allows employees to reasonably assume that it pertains to — among other things — certain protected concerted activities, such as communications that are critical of [Costco's] treatment of its employees."  As such, the policy didn’t exclude communications among workers that are protected by Section 7 and was unlawfully broad.  

Even more recently, in a September 28, 2012 ruling, the Board did not draw the line any clearer.  In a case involving an employee fired over Facebook posts, the NLRB concluded in Karl Knauz Motors Inc. that the employer was within the bounds of the Act when it fired a salesman for posting Facebook photos and comments related to an accident at an adjacent Land Rover dealership, which is also owned by the company. The Board found in this case that the postings did not constitute protected, concerted activity.  In the Karl Knauz Motors case, the Board concluded that the salesperson was lawfully fired for these posts.

However, the Board did not consider whether a second set of posts from the same day mocking the food his employer served at an event introducing a new BMW model were protected.  The salesman had attended a promotional sales event and posted photos of it on his Facebook page. The sales event was organized by the BMW dealership, and several of its salespersons voiced criticisms of the inexpensive food that was offered to attendees, including hot dogs and chips. On his Facebook page, a salesman posted photos of employees of dealership eating the food at the event, and underneath the photos he posted comments that mocked the food served there.

Karl Knauz Motors had an employee handbook with a rule reminding employees to be courteous to others, stating, "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 or reputation of the Dealership."  When the company learned of both postings, they questioned the salesman about his actions, who allegedly showed no regret for his actions. The company told him that other dealerships saw the postings, which hurt Knauz's image. The salesperson was terminated for the Land Rover posting.

On a positive note, the Board's Karl Knauz Motors decision indicates that employers may take disciplinary action based on social media postings that are entirely unrelated to the workplace.  However, because the Board did not  consider the second set of postings, which commented on the employee's own workplace, the Board's decision offers employers only limited guidance concerning the types of posts upon which they can base disciplinary actions.  

What do these decisions mean for employers both small and large?  Neither of these decisions give employers much guidance on where to draw the line on employees' protected versus unprotected postings using social media.  However, it's apparent that the NLRB is taking keen interest in how employers treat both union and nonunion workers when it comes to the use of social media.  Effectively, the NLRB has called into question any policy by a company that broadly states employees can be disciplined for posting comments online that the employer views as damaging to the company.  

What this should tell employers is that a review of their social media policies with legal counsel may help them determine if they’re likely to be in violation of the federal labor laws. If a company has a social media policy, employers may wish to consider providing specific examples of what they believe falls under "damaging to the company" rather than simply broadly prohibit such discussion and should avoid ambiguous rules that could be construed against them or the use of generic terms like "unprofessional" or "inappropriate."  Further, employers might want to go so far as to include language in their policy that defines "protected concerted activities" pursuant to the National Labor Relations Act and state that the employer's policy is not intended to interfere with such conduct protected by the Act.  Employers are also well-advised to consult counsel before carrying out a decision to terminate an employee for a social media posting.

POSTED BY SCOTT T. SILVERMAN ON AUGUST 10, 2012

POSTED BY SCOTT T. SILVERMAN ON AUGUST 10, 2012

On July 27, 2012, Judge Boasberg of the U.S. District Court for the District of Columbia denied the National Labor Relations Board’s ("Board") motion to reconsider his holding that that the Board's expedited representation election rule was invalid due to lack of a statutorily-mandated quorum when the Board approved the rule in December 2011.  In his earlier decision,  Judge Boasberg had agreed that the agency did not have the authority to adopt the election rule, as only two members actually cast votes in the rule's favor. Member Brian Hayes had voted against an earlier version of the rule, but declined to participate in the December vote.  Thus, according to the D.C. Court, only two members participated in the vote, which was not a quorum.

In its effort to persuade the  D.C. Court to revisit its decision, the Board presented new evidence to support its position that Member Hayes was present in the electronic voting room the day of the election rule vote, and in fact cast his vote on other matters.  Judge Boasberg held, however, that this information was "offered too little too late." In denying the NLRB's motion, Judge Boasberg emphasized that "the Board has neither adequately explained why it could not have presented this evidence at the summary-judgment stage nor established that the Court’s contrary finding was 'clear error.'" In conclusion, Judge Boasberg found no "manifest injustice" in denying the motion for reconsideration and upholding his earlier decision.

The Board already suspended the election rule's implementation, so the rule will continue to not apply to pending election proceedings. It is expected that the Board will appeal the decision, and the matter will ultimately be resolved by appellate courts.

POSTED BY SCOTT T. SILVERMAN ON AUGUST 9, 2012

On July 30, 2012,  in Banner Health System d/b/a Banner Estrella Medical Center and James Navarro, Case No. 28-CA-023438 (2012), the Board held that it was unlawful to maintain a blanket policy forbidding employees who make a workplace complaint from discussing the matter with co-workers during the employer’s investigation. In Banner, the employee made an internal complaint regarding a direction that he received to alter his normal duties when his equipment malfunctioned. The employee refused to follow his supervisor’s instructions, on the basis of health and safety concerns, and thereafter received a “coaching” for insubordination.

In connection with the "coaching," the employee met with the employer’s human relations consultant. During the interview, the employee was requested to not discuss the matter with co-workers while the investigation was ongoing. The Board noted that the representative used an "Interview of Complainant Form” that contained the confidentiality instruction for all interviews. 

In a 2-1 decision, the Board held that a “blanket” rule of providing confidentiality directives in connection with internal complaint interviews violates employees’ rights to engage in protected concerted activity under Section 7 of the NLRA. The Board determined that the employer’s “generalized concern with protecting the integrity of its investigation” was too broad to satisfy a legitimate business interest that would outweigh employees’ Section 7 rights. The Board rejected the argument that the consultant's request was a “mere suggestion” to not  discuss the internal investigation, because it “had a reasonable tendency to coerce employees,” and a rule need not contain a direct or specific threat of discipline to be found a violation of the NLRA.  

An employer's policy must be more narrowly tailored to prohibit employee discussion about an ongoing investigation.  An employer may do so only if it has a specific legitimate business justification for confidentiality tied to the individual investigation. This must be determined on a case-by-case basis, which might include, but is not limited to: witness protection; evidence is in danger of being destroyed, testimony is in danger of being fabricated, or a cover-up needs to be prevented.

In light of the Board's decision, employers should review their internal complaint procedures to ensure confidentiality directives are provided only as necessary on a specific, individual basis.  In a broader context, however, this is the latest example of the Board's invalidation of non-union employer policies under Section 7 of the NLRA, including social media, "at-will" employment disclaimers and arbitration. The Board has even launched a webpage advising employees of their Section 7 rights.   Employers can therefore expect to see a rise in unfair labor practice charges and are advised to examine all of their current procedures to assure compliance with the NLRA.

POSTED BY SCOTT T. SILVERMAN ON JULY 10, 2012

The National Labor Relations Board (the Board) has started to move aggressively against "at-will” employment disclaimers that many employers include in their handbooks. Typically, employers include an "at-will" employment policy, which states that employees may be terminated at any time for any lawful reason, with or without notice and with or without cause.  Further, employers advise employees that their "at-will" employment status may not be amended absent a written document signed by a high-level official and require employees to sign an acknowledgement of these provisions.  These statements are intended to counter any argument by employees that the handbook creates a contract of employment, or that they entered into an oral employment contract with the employer.  The Board has recently taken the position that broadly written "at-will" employment policies chill employee's’ rights to engage in protected concerted activity under Section 7 of the National Labor Relations Act (the Act).

In N.L.R.B. v. Am. Red Cross Ariz. Blood Servs. Region, 2012 WL 311334 (N.L.R.B. Feb. 1, 2012), a Board ALJ found that the American Red Cross violated the Act by maintaining an employee handbook policy that stated, in part, "I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.” The ALJ opined that the clause could be reasonably construed by an employee as relinquishment of his or her right to engage in action to change “at-will” status through union representation, collective bargaining or other protected concerted activity.  The ALJ reasoned such an implicit waiver impermissibly chills employees' exercise of Section 7 rights.

Then, on February 29, 2012, the Board's Acting General Counsel issued a Complaint against Hyatt Hotels Corporation (Hyatt), asserting that Hyatt's broadly written "at-will" employment disclaimer violated the Act by interfering with employees' Section 7 rights.  At issue was Hyatt's policy statement that the "at-will" status of employment could only be changed in a writing signed by the employee and either the Executive Vice President/Chief Operating Officer or  President.  Again, the Board took the position that requiring an employee acknowledgement that "at-will" employment could only be altered by written agreement amounted to an interference with protected Section 7 rights.

In response to these developments, employers should carefully examine their "at-will" employment policies.  Broadly worded disclaimers, which unequivocally state that "at-will" employment cannot be altered or can only be changed in a certain way, should be avoided. Employers may wish to consider language that recognizes employees' Section 7 rights, while asserting the employer's position on "at-will" employment. 

POSTED BY SCOTT T. SILVERMAN ON JUNE 4, 2012

On May 30, 2012, the National Labor Relations Board's ("Board") Acting General Counsel, Lafe Solomon, issued his Third Report on Social Media Cases. This Report describes the restrictions on employee use of social media that an employer may lawfully include in its policies.

Under the National Labor Relations Act ("Act"), an employer may not implement a policy that would reasonably tend to chill employees in the exercise of their rights. If the rule does not explicitly restrict protected conduct, then the Board considers the rule to violate the Act, if: (1) employees would reasonably construe the language to prohibit protected activity;  (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict protected rights. Ambiguous rules must contain both limiting language and examples of clearly illegal or unprotected conduct to clarify that the rule does not restrict protected rights and may not be reasonably construed to do so.

The Report identifies, in great detail, the application of the foregoing standards to seven social media policies.  In six of the cases, the General Counsel found certain aspects of the policy to be lawful, although certain parts were unlawful.  In the last case, the General Counsel held that the entire policy was lawful.  Of particular interest, the Report explains that the following clauses were not overbroad: (1) a prohibition on "inappropriate postings that may include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct," because it could not be reasonably construed to reach, and there was no evidence that the rule was used to discipline, protected activity; (2) a requirement that employees be "fair and courteous" and "respectful," because examples made it clear that the policy did not reach protected activity;  and (3) a restriction on divulging trade secrets or  private or confidential information, because employees have no right to divulge trade secrets and, again, the rule contained sufficient examples of prohibited disclosures so that employees could not reasonably conclude that protected communications were prohibited.  The Report reprints the entire policy.

Employers are encouraged to review the Report and discuss with counsel the need to revise their social media policies, as necessary. 

POSTED BY SCOTT T. SILVERMAN ON MAY 30, 2012

On May 26, 2012, Board Member Terence F. Flynn submitted his resignation to  President Barack Obama and to NLRB Chairman Mark Gaston Pearce.  The resignation is effective July 24, 2012.  However, Mr. Flynn immediately recused himself from all agency business and has asked that the President withdraw his nomination for Board Member of the NLRB.

Mr. Flynn was sworn in as a Board Member on January 9, 2012, following a recess appointment by the President.  However, he had recently come under fire for alleged ethical transgressions. The Board’s inspector general, David P. Berry, issued a report in early May that found that Mr. Flynn, a Republican, had committed serious violations by leaking drafts of board decisions and details of internal deliberations to Peter Schaumber, a former labor board chairman who had been co-chairman of Mitt Romney’s labor advisory committee.

On May 29, 2012,  NLRB Chairman Pearce and Members Brian Hayes, Richard Griffin and Sharon Block met with the agency’s staff to answer questions and issued a joint statement.   The NLRB will be able to continue to conduct business with its four (4) remaining members.  The Board's composition will now be three (3) Democrats and one (1) Republican.  We therefore expect that the Board will continue to implement its pro-labor agenda.

POSTED BY SCOTT T. SILVERMAN ON MAY 25, 2012

In a decision filed on May 18, 2012, Oliveira v. Citicorp North America, Inc. and Citigroup, Inc., Case No. 8:12-cv-251-T-26TGW (M.D. Fla. 2012), Judge Richard A. Lazzara of the Middle District of Florida held that a complete waiver of class and collective actions in either a judicial or arbitration forum was enforceable.  This decision directly conflicts with the National Labor Relations Board's ("NLRB") holding in In re D.R.Horton, Inc., 357 NLRB No. 184 (2012), that such agreements violate employees' right to engage in protected concerted activity under the National Labor Relations Act. 

Plaintiffs brought FLSA overtime claims, alleging that they were improperly categorized as exempt.  Defendants moved to compel arbitration on the basis of handbook acknowledgements, which both required employees to bring all claims in arbitration and waived any right to collective or class arbitration.  While the parties agreed that FLSA claims are subject to arbitration, plaintiffs, relying on D.R. Horton, argued that the collective action waiver was unenforceable. Judge Lazzara disagreed, reasoning that the Eleventh Circuit has enforced waivers of FLSA collective actions in mandatory arbitration agreements. Caley v. Gulfstream Aerospace Corporation, 428 F.3d 1359 (11th Cir. 2005). The court noted that district courts outside of the Eleventh Circuit are split as to whether to follow D.R. Horton, but determined that it was bound to apply the Eleventh Circuit precedent of Caley. 

As previously reported, the NLRB continues to apply D.R. Horton and has brought unfair labor practice proceedings to enjoin enforcement of such arbitration agreements.  Given the divergent authority, employers are cautioned to review their arbitration agreements and to carefully consider whether to amend them.  Until further notice, courts in the Eleventh Circuit will likely enforce such waivers in employment-related lawsuits, but this will not prevent the NLRB from bringing unfair labor practice charges against employers who have such agreements.  It is expected that the Eleventh Circuit will soon be asked to consider the continued vitality of Caley and this issue may wind up in front of the Supreme Court.  We will continue to provide updates as new developments occur. 

POSTED BY SCOTT T. SILVERMAN ON MAY 15, 2012

According to a D.C. federal court, another regulation issued by the National Labor Relations Board (the "Board") is unlawful.  This time, the Board's so-called "quickie election" rule, which would shorten the time period between an union petition and the election, has been struck down.  This is an important outcome for employers, because the new regulation, if it had been approved, would have resulted in a greater percentage of union victories and a consequential increase in union organizing.  For the time being, at least, those outcomes have been avoided.

In Chamber of Commerce of the United States of America, et al. v. National Labor Relations Board, Civil Action No. 11-2262 (JEB) (D.D.C. May 14, 2012), Judge James Boasberg of the D.C. District Court held that the Board's regulation was invalid, because no quorum existed for the final vote in favor of its adoption.  Although expressing no formal opinion on other challenges, Judge Boasberg strongly hinted that a properly constituted quorum of the Board could vote to adopt a final version of the regulation.  Until then, however, Judge Boasberg held that the Board's prior procedures govern representation elections.

On June 22, 2011, the Board formally proposed to amend its procedures governing election disputes in a Notice of Proposed Rulemaking ("NPRM"), which was issued by a 3-1 vote. Member Brian Hayes ("Hayes") dissented. On November 30, 2011, the remaining three members of the Board voted to prepare a final rule containing certain of the amendments contained in the NPRM, which passed by a 2-1 vote, with Hayes again dissenting.  Thereafter, a final rule was prepared and circulated in the Judicial Case Management System ("JCMS").  Both Chairman Mark Pearce and Member Craig Becker voted to approve the rule, and it was forwarded to the Solicitor for publication in the Federal Register on the same day.  However, Hayes did not register a vote on the final version in JCMS.

The Board argued that, because Hayes had continually voted against the new regulation, he had sufficiently indicated his opposition to be counted toward the quorum.  However, Judge Boasberg disagreed with the Board's position, reasoning that, under 29 U.S.C. §153(b), "three members of the Board shall, at all times, constitute a quorum," and, therefore, three members' participation was necessary for the vote on the final version of the rule. Judge Boasberg noted three (3) facts that led him to consider Hayes absent: (1) Hayes took no action whatsoever in response to the JCMS notice; (2) no one requested that Hayes provide a response; and (3) only a short amount of time passed between the circulation of the JCMS notice and the forwarding of the rule for publication.  Hayes' mere Board membership was insufficient for a quorum.

In response to the decision, the Board announced that it has temporarily suspended the implementation of changes to its representation case process, which had taken effect April 30.  Further, Acting General Counsel, Lafe Solomon, withdrew the guidance to regional offices that he had issued on the new procedures and advised regional directors to revert to previous practices governing election petitions.  The Board stated that it is considering its options. However, it will likely seek a stay of the decision pending appeal, or may seek to revote, with its current composition of three Democrats and two Republicans.  Still, consistent union avoidance strategies continue to be paramount in this ever-changing landscape.

POSTED BY SCOTT T. SILVERMAN ON MAY 11, 2012

On April 30, 2012, the National Labor Relations Board ("Board")  issued a complaint alleging that 24 Hour Fitness USA, Inc. violated the National Labor Relations Act ("Act") by requiring that all employment disputes be resolved by an arbitration in which only individual, and not class or collective, claims could be brought.

24 Hour Fitness, which operates centers across the country, requires employees as a condition of employment, to execute an arbitration agreement, in which they forego any rights to file collective or class action lawsuits or arbitrations.   Earlier this year, in D.R. Horton, Inc., 357 NLRB No. 1 (2012), the Board had held that such a requirement violates the protected rights of employees to engage in concerted activity under Section 7 of the Act.

The Board's San Francisco Regional Office issued a complaint, which charged that the company had enforced its policy by asserting it in numerous actions in an effort to compel employees to submit common claims to individual arbitrations.  The company engaged in an unfair labor practice by violating protections guaranteed by the Act, according to the complaint issued by the agency’s San Francisco Regional Office.

The Board's action demonstrates that employers must examine their arbitration policies to see if they are in compliance.   An effort by employers to compel employees to bring all employment-related claims through individual arbitration may be found to constitute an unfair labor practice.