Your employees are social media-ing at work, and there's not a damn thing you can do about it

A recent survey conducted by the Pew Research Center confirmed what I have long thought. Your employees are using social media a work — 77 percent of them. And I believe even that number is low.

http://www.pewinternet.org/2016/06/22/social-media-and-the-workplace/pi_2016-06-22_social-media-and-work_0-01/

The attack on the NLRB's new joint-employer standard intensifies

Last week was a good week for opponents of the NLRB’s new, and more liberal, joint-employer standard, announced last summer in Browning-Ferris Industries of Calif. 

EEOC pushes NLRB to find common ground on workplace harassment

It’s no secret that I’m not a fan of the NLRB’s expanded coverage of protected concerted activity. One area over which I’ve been particularly critical is the NLRB’s position on the confidentiality of workplace investigations and workplace civility policies.

Now, the EEOC has also taken up the challenge.

Philip Miscimarra is mad as hell, and you should be too!

NLRB Member Philip Miscimarra is mad as hell about the Board’s current position on employee-handbook policies and protected concerted activity, and he’s not gonna to take this anymore.

A dramatic retelling of an NLRB protected concerted activity decision

Last week, the NLRB decided Dalton Schools, Inc. [pdf], in which the Board unanimously determined that a private school unlawfully terminated one of its teachers for engaging in certain protected concerted activity—complaints about how the school handled its annual musical production.

In the spirit of the decision, I present a dramatic retelling of the case, in five acts.

You have the right to replace striking workers, right?

Labor unions and the employees they represent have the right to strike. To combat the economic pressure of that labor stoppage, employers have long held the right to permanently replace those striking employees with replacement workers. Or, at least employers had that right.

Earlier this week, in American Baptist Homes of the West [pdf], the NLRB severely restricted the rights of employers to hire permanent replacements by holding that an employer violated the National Labor Relations Act if if permanently replaces striking employees for the purpose “to punish the strikers and the Union and to avoid future strikes.”

7th Circuit surprises by siding with NLRB on arbitration agreements

It’s been two and a half years since the 5th Circuit, in D.R. Horton, rebuked the NLRB’s prohibition on mandatory arbitration clauses. Since, however, the NLRB has been undeterred, finding, in case after case, that employers’ mandatory arbitration agreements (with and without class-action waivers) violate employees’ rights to engage in protected concerted activity under section 7 of the National Labor Relations Act.

Thus, when I heard that the traditionally business friendly 7th Circuit would be taking up the same issue, I figured the NLRB would go 0 – 2 in the federal courts of appeals on this issue. Boy was my prognostication radar off.

NLRB positively botches decision over “positive workplace” policy

Do you have a “Positivity Policy” like the following in your employee handbook?

The Company expects all employees to behave in a professional manner that promotes efficiency, productivity, and cooperation. Employees are expected to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers, and management.

What could be wrong with a workplace policy that tells employees to “maintain a positive work environment”? Everyone loves, positivity, right?


Everyone, that is, except the NLRB.

Is it time for a new NLRB rule on handbook policies?

Last week, in William Beaumont Hosp. [pdf], the NLRB issued yet another decision holding that an employer’s work rules unreasonably infringed on employees’ rights to engage in protected concerted activity. Not newsworthy, right?

What is newsworthy, however, is that the lone Republican currently serving on the NLRB, Philip Miscimarra, used the decision as an opportunity to publish a scathing dissent calling for a complete re-write of the NLRB’s rules on employer policies and protected concerted activity.

The 18-page takedown is a must read for any employer frustrated with its inability to draft facially neutral, reasonably based work rules.

What issues are on the NLRB’s radar? Be afraid.

If you want to know the legal issues that are on the NLRB’s radar, you need to look no further than NLRB General Counsel Memo 16-01 [pdf], which lists those categories of cases that “are of particular interest and would benefit from centralized consideration.” In other words, which cases must the NLRB’s regions submit to D.C. for charge-or-don’t-charge decisions?

Several areas defined as “initiatives and/or priorities” caught my attention, and should catch yours too:

NLRB judge shoots down employee separation agreement as overly broad

Employers prefer finality when they pay an employee severance at the end of employment. One way employers sure up this finality is by obtaining a broad release of claims and covenant not to sue from the employee. But, that is not the only way. Employers use of variety of terms in separation agreements to try to ensure that the agreement is the last they will hear from the employee. That is, unless the employee runs to the NLRB, which seems to believe that there isn’t a policy that doesn’t violate the Board’s rules on protected concerted activity.

DOL's “Persuader Rule” goes live; unions rejoice

The U.S. Department of Labor has issued its long awaited Final Rule reinterpreting the “Advice Exemption” to the Labor Management Reporting and Disclosure Act, otherwise known as the “persuader” rule.

What does this mean for you? In summary, it means that if you engage an outside law firm or other consultant to provide advice, or to otherwise represent you concerning employee organizing, concerted activities, or collective bargaining activities, you must report that engagement to the DOL, and, therefore, also to the union.

NLRB judge protects the lone wolf in Chipotle social-media firing decision #RaganDisney

I spent last Thursday and Friday in Disney World. It wasn’t a pleasure trip, although Epcot was toured during some down time. I was invited to speak at this year’s Ragan Social Media Conference, which, I have to say, was one of the best organized and produced events I’ve ever attended. It was a day-and-a-half of cutting edge information on using social media for marketing and PR. My session covered how employers can protect their brands from employee social-media missteps. It’s always fun to watch a room full of non-employment lawyers’ mouths gape when I start talking about the NLRB.

So, to anyone out there who was at my session, Chipotle Services LLC, decided earlier this week by an NLRB judge, is mandatory reading.

The case involves an employee fired by Chipotle after he took to his personal Twitter account to voice his displeasure about the state of his wages and other working conditions at Chipotle. For example, in response to a customer who tweeted “Free chipotle is the best thanks,” the employee replied, “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?” Another, directed at Chipotle’s communication director, concerned a lack of pay for snow days.

The NLRB judge had little trouble concluding that Chipotle had fired the employee for engaging in protected concerted activity: speech about his wages, benefits, or other terms and conditions of employment between or among employees.

I agree that the NLRA protects tweets about wages and days off. Pay attention, however, to how this judge defines “concerted”, as it is becoming apparent that one employee, voicing his concerns to about work on social media, without any engagement from co-workers, is sufficient to constitute “concerted” protected activity:

Kennedy’s tweet concerning snow days was directed to Chipotle’s communications director but visible to others; Kennedy’s other two tweets were in response to customer postings, and likewise visible to others. All these postings had the purpose of educating the public and creating sympathy and support for hourly workers in general and Chipotle’s workers in specific. They did not pertain to wholly personal issues relevant only to Kennedy but were truly group complaints. I conclude that Kennedy’s postings constitute protected concerted activity.

In other words, as long as an employee is addressing a group complaint, the activity is concerted, regardless of whether any other employee engages.

Earlier this year, I predicted the breadth of the NLRB’s coverage of “concerted” in social-media cases:

If, as the Board suggest, employee intent is the measuring stick for whether a lone employee’s activity is concerted, then any employee’s solitary social-media post can be considered concerted merely by the employee stating an intent to initiate or induce group action. And, since social media is inherently social (i.e., group in nature), doesn’t this test suggest that all such activity is concerted.

So, we have another social media case in which an employee triumphs over an employer based on a liberal interpretation of NLRA protections. Fear not employers, for this case has a silver lining. According to Jane von Bergen of the Philadelphia Inquirer, the employee has offered to accept food vouchers in lieu of back pay: “You cannot deny that their food is delicious, but their labor policies were atrocious.” If only every case was that simple to resolve.

NLRB narrows employer property rights in key solicitation decision

One of an employer’s best tools to stave off labor unions and their organizing campaigns is a no-solicitation policy. It keeps employees focused on work during working hours, and keeps non-employees (including, but not limited to, union organizers) off your property and out of your workplace.

Yet, over the past couple of years, the NLRB has narrowed employers’ no-solicitation rights. For example, employer email systems must now be open for union-related activities during non-working time.

What about low-tech solicitations? Conventional wisdom used to be that employers could prohibit solicitations in work areas during working time and non-working time. Does this work-area rule still hold?

“Lady Murderface”, Yelp, and the National Labor Relations Act

By now, you’ve likely heard about the employee fired by Yelp for her very public blog post directed at her former employer’s CEO, criticizing her $24,000 annual salary. Here’s a particular biting excerpt:

I wonder what it would be like if I made $24,000 more annually. I could probably get the headlight fixed on my car. And the flat tire. And maybe even get the oil change and renewed registration — but I don’t want to dream too extravagantly. Maybe you could cut out all the coconut waters altogether? You could probably cut back on a lot of the drinks and snacks that are stocked on every single floor. I mean, I could handle losing out on pistachio nuts if I was getting paid enough to afford groceries. No one really eats the pistachios anyway — have you ever tried answering the phone fifty times an hour while eating pistachios? Those hard shells really get in the way of talking to hundreds of customers and restaurants a day.

A labor union filed an Uber-huge representation petition with the NLRB

Politico New York reported last week that International Brotherhood of Electrical Workers, Local 1430, petitioned the NLRB to represent 600 New York area Uber drivers. You can read the representation petition here.

Uber is locked in a battles all over the county with its drivers, defending lawsuits claiming that its drivers are employees for wage-and-hour purposes. This case, however, brought in the most employee friendly forum Uber drivers could possibly find, is the first attempt by drivers to organize. And because of the employee-friendliness of the NLRB, this story has the potential to be absolutely huge.

NLRB continues to slam employers on mandatory arbitration clauses

Last week, the Huffington Post reported that Guitar Center was requiring all of its employees to choose between signing arbitration agreements or losing their jobs.

I have been critical of employers’ use of arbitration agreements because I do not believe that they provide employers with a quicker, cheaper, and less risky alternative to a judicial resolution of employment disputes.

The NLRB is also highly critical of arbitration agreements, but for a wholly different reason. The NLRB believes that such clauses unlawfully infringe on the rights of employees to engage in protected concerted activity.

NLRB champions the lone wolf in latest protected concerted activity decision

In Whole Foods Market [pdf], the NLRB held that the employer’s rules prohibiting employees’ use of recording devices in the workplace violated their rights to engage in protected concerted activity under the National Labor Relations Act.

The unlawful policies read as follows:

It is a violation of Whole Foods Market policy to record conversations, phone calls, images or company meetings with any recording device (including but not limited to a cellular telephone, PDA, digital recording device, digital camera, etc.) unless prior approval is received.…

U.S. Chamber takes on the NLRB’s Theater of the Absurd

If you’ve been reading my blog for any length of time, what I am about to tell you should not come as a shock—I’m not a huge fan of the current iteration of the NLRB.

Yes, labor unions have a right to exist, and, yes, employees have the right to join them, and, yes, unions have the right to collectively bargain for wages, hours, and other terms and conditions of employment. When the NLRB operates correctly, it balances the rights of employers, unions, and employees to maintain industrial peace. Currently, the NLRB is not operating correctly.

My main critique of the NLRB is not with its handling of the 7% of the American workforce that is collectively bargained (although that has issues too), but instead with its handling of the other 93%. The NLRB has waged a war over the past five years on the issue of protected concerted activity, and nowhere do the NLRB’s opinion and my opinion differ more than over the issue of employee handbooks and workplace policies.

One early unexpected result from the NLRB’s ambush election rules

The first six months of the NLRB’s ambush election rules have resulted in one expected result and one unexpected result.

On the expected front, the median time from the filing of a representation petition to the holding of an election has dropped nearly 40 percent, from 38 days to 23 days.

What is the unexpected result?