Labor Law - Protected Concerted Activity

In applying a standard Wright Line analysis of whether employee activity constitutes conduct protected by Section 7 of the NLRA, the Board, in Hitachi Capital America Corp. and Virginia Kish, 361 NLRB No. 19 (2014), has taken one of its factors to a new level. An employee was discharged for the tone

In yet another case that impacts both union and non-union employers, the National Labor Relations Board (NLRB) recently found that an employee who asked coworkers for assistance in preserving evidence for a sex harassment complaint she planned to raise with her employer was engaged in "concerted act

A National Labor Relations Board (NLRB) Regional Director is pursuing a set of complaints against a Maryland-area contractor, accusing the contractor of retaliating against immigrant employees for bringing a Fair Labor Standards Act (FLSA) action and attempting to unionize. The matter has drawn the

Employers, struggling to regulate employees’ work-related social media postings, recently suffered a string of defeats in National Labor Relations Board (NLRB) cases challenging their social media and related communications policies. The six cases, decided in the past two months, which resulted in f

On remand from the Ninth Circuit, the National Labor Relations Board held for the second time that an employer violated the National Labor Relations Act by terminating an employee who engaged in a profane and insubordinate outburst. The Board required the employer to reinstate the employee with back

The NLRB recently held that an employer lawfully terminated an employee for intentionally violating an overbroad and unlawful confidentiality rule. Flex Frac Logistics, 360 NLRB No. 120 (May 30, 2014). While the Board’s decision is a welcome change of pace, the result is very fact-specific. The empl

In Food Services of America, Inc., 360 NLRB No. 123 (May 30, 2014), a Board panel majority (Hirozawa, Schiffer) struck down an employer’s solicitation policy and concluded that instant messages between two employees involving job security are protected concerted activity under the National Labor Rel

Executive Summary: On May 1, 2014, the National Labor Relations Board (NLRB) issued an order finding that Piedmont Gardens, a retirement community, violated § 8(a)(1) of the National Labor Relations Act (NLRA) when it implemented and enforced a policy restricting off-duty employee access to its prop

It has been a difficult last few years for the National Labor Relations Board (NLRB). Not only are hundreds of decisions of the agency in limbo due to a Supreme Court challenge involving President Barack Obama’s purported recess appointment of several members of the agency while the U.S. Senate was

A trio of recent cases highlights the National Labor Relations Board’s current focus on employer work rules and conduct policies. Under Section 8(a)(1) of the National Labor Relations Act, workplace rules that “explicitly restrict” an employee’s exercise of protected concerted activity are unlawful.

The National Labor Relations Board (the Board) recently issued yet another decision invalidating common handbook policies and work rules. This case is the most recent in a long series of cases striking down common rules governing employee conduct. In Hills and Dales General Hospital, 360 NLRB No. 70

On March 25, 2014, the National Labor Relations Board affirmed the Administrative Law Judge’s ruling that an employer violated various sections of the National Labor Relations Act by engaging in retaliatory acts against an employee for his conduct in representing a coworker at an investigatory inter

Executive Summary: The Fifth Circuit recently found that a confidentiality agreement prohibiting disclosure of "financial" and "personnel information" was unlawful under the National Labor Relations Act (NLRA). Employers who use confidentiality agreements to protect their confidential business infor

The Equal Employment Opportunity Commission (EEOC) has announced that it will discuss the EEO law implications of social media use in the workplace during a public meeting next week. Topics to be addressed include how social media plays a role in recruitment and hiring, harassment, and records reten

Watch what you wish for. There is a line in the sand between protected group activity and general “griping.” The distinction is critical, however, as it may spell the difference between unemployment or the impingement upon protected speech. In Tasker Healthcare Group, d/b/a Skinsmart Dermatology, th

Executive Summary: On the same day as the D.C. Circuit Court of Appeals determined President Obama's recess appointments are unconstitutional, the NLRB continued its assault on workplace rules and employee handbook policies. See DirecTV U.S. Direct Holdings, LLC, 359 NLRB No. 54 (Jan. 25, 2013). Reg

Executive Summary: Following recent attacks on the employment at-will doctrine by one of the NLRB's Regions, the Board has stepped its position back somewhat, issuing two Advice Memorandums through its Associate General Counsel. In these opinions, the Board's Associate General Counsel takes the posi

Earlier this year, non-union employers (approximately 93% of private industry in the United States) and many labor and employment attorneys were surprised to learn that the National Labor Relations Board (NLRB) might deem rudimentary employee handbook at-will disclaimer language to violate employees

Executive Summary: During the past year, the National Labor Relations Board has begun chipping away at the employment at-will doctrine. Based on the activities of one of its regional offices, the Board appears intent on limiting the at-will doctrine by finding that at-will acknowledgments in employm

Executive Summary: In its first published discipline/discharge decision involving employee Facebook access, the National Labor Relations Board has upheld the termination of an employee whose Facebook posts mocked an accident on his employer's property.