Getting your termination ducks in a row

Just because someone engages in protected conduct doesn't mean you can't fire them. It just means you better have your ducks in a row when you do so.

Case in point: the saga of Nicole Oeuvray and the Art Directors Guild. Oeuvray, who served as the guild's accountant for 16 years, had been one of leaders of a campaign to organize the guild's employees into a labor union.

NLRB resets the rules on employee handbooks … yet again

Yes, we need to talk about employee handbooks and the NLRB … again. 

Yesterday, the Board decided Stericycle, Inc., and announced its 5th (at least) new and different standard in the past 25 years as to when a workplace policy (such as those in employee handbooks) violate employees' rights to engage in protected concerted activity under the National Labor Relations Act to talk between and among themselves about their terms and conditions of employment.

It's enough to give an HR practitioner or employment lawyer legal whiplash, and I'm not going to go through the history of all of these various disparate standards. If you want full history, you can read the Stericycle opinion or search the blog's archives.

What you really want, and need, is a summary of the new standard moving forward (and, as you'll soon discover, backward). Here it is.

Why all employers should care about the SAG-AFTRA and WGA strikes

At midnight on July 14, SAG-AFTRA, the labor union representing 160,000 film and television actors, went on striking, joining their fellow members of the WGA on the Hollywood picket lines. 

One of the key issues in both negotiations in the future of AI in the entertainment industry. SAG-AFTRA claims that the studios want the ability to pay background actors for one day's work use that likeness in perpetuity for any project without consent or compensation, including through the use of generative AI to fully replace the live actor. Similarly, a key sticking point for the WGA is the use of generative AI to write scripts in their entirety, which can then be edited by lower-priced non-union members.

Can an employer disable online commenting to quell pro-union messaging?

There's a lot going on with the union organizing campaign at Creature Comforts Brewing Company. While the union (known as "BUG") continues to wait for the NLRB to schedule a representation election, BUG continues to accuse the brewery of illegal union busting. 

According to the BUG, the brewery (allegedly) illegally fired Spencer "Spicy" Britton, one of the union's biggest supporters. Moreover, the public and the brewery's employees can no longer express their opposition to the brewery's alleged union busting tactics by posting comments on Creature Comforts' Instagram posts. The brewery has disabled the ability to comment on all new posts since March 29.

I'd like to tell you that because the Instagram comment policy applies equally to everyone (non-employees and employees), there's nothing unlawful about it under the National Labor Relations Act. But with the current composition of the most pro-union NLRB in history and its equally pro-union general counsel, all bets are off. I'd have real concerns permitting a client to take this step under these or similar circumstances.

NLRB General Counsel Jennifer Abruzzo just obliterated non-compete agreements (maybe)

In my view, the proffer, maintenance, and enforcement of a non-compete provision that reasonably tends to chill employees from engaging in Section 7 activity … violate Section 8(a)(1) unless the provision is narrowly tailored to special circumstances justifying the infringement on employee rights.

With that sentence from NLRB General Counsel Jennifer Abruzzo's just-published memo — entitled, Non-Compete Agreements that Violate the National Labor Relations Act — Ms. Abruzzo sent employment lawyers (including this employment lawyer) scrambling to understand exactly what she said and what she means.

Federal agencies need to stay in their lanes

• National Labor Relations Board and Consumer Financial Protection Bureau announce new partnership to address employer surveillance, monitoring, and data collection in the workplace


• Worker advocates call on OSHA to set standard on employee surveillance


• NLRB General Counsel may seek to invalidate non-compete clauses in employee severance agreements

These are just a few of headlines I've recently read in which one federal agency or another is signaling an intent to regulate outside of its core mission. Federal agencies should stay in their lanes, period. OSHA regulates workplace safety. The NLRB regulates the relationship between unions and management, and in non-union settings the rights of employees to engage in protected concerted activity.

NLRB General Counsel goes nuclear on severance agreements in her guidance on McLaren Macomb

NLRB General Counsel Jennifer Abruzzo just released her Guidance in Response to Inquiries about the McLaren Macomb Decision. 

Recall that McLaren Macomb held that garden-variety non-disparagement and confidentiality clauses in workplace severance agreements violate the National Labor Relations Act by unlawfully infringing upon the rights of employees to engage in protected concerted activity.

Just how far does Ms. Abruzzo push the limits of McLaren Macomb in her interpretation?

What can you do about employee mass protests? (Hint: not much.)

The 25 employees of Mela Kitchen at Jack’s Hard Cider recently walked off the job in protest after owner Donald Hoffman created a new drink menu of cocktails with racially inspired named such as "The Caucasian" and "The Negro."

MSN quotes one employee, Emily Kate Hessler, on why she and her co-workers decided to engage in the mass protest.

Despite days of efforts from upper management trying to halt this cocktail and it's name, Friday comes and it's time to reveal this weekends special. I made a formal complaint to upper management and notified them that if the name isn't changed most of the scheduled staff will be walking. An email was sent to Donald informing him of our plan and his reaction was explosive.

NLRB bans non-disparagement and confidentiality covenants in severance agreements. What now?

Is it time to rip up your stock severance agreement? Consider the following two clauses, which I bet your standard agreement contains in some form.

Union avoidance vs. union busting

"A company that opposes a union organizing and presents both sides of this complex issue is 'union busting.'" This is what one commenter wrote in response to my recent post about union organizing at Creature Comforts Brewing Co.

I could not disagree more. 

There is vast, substantive, and significant difference between union avoidance and union busting.

Update on Creature Comfort Brewing’s union organizing

Last week I reported that the employees of Creature Comforts Brewing Co. formed their own independent labor union, the Brewing Union of Georgia (aka BUG) and announced their intent to unionize their workplace.

A lot can happen in a week.

What does Creature Comfort’s union announcement mean for your craft brewery?

The employees of Creature Comforts Brewing Co. recently held a rally to announce their intent to form a labor union. They also announced the formation of the Brewing Union of Georgia, an independent union created by the brewery's employees with the stated goal of spreading their movement across their state. Despite the union's "independence," it has received assistance and guidance from assistance from the United Campus Workers of Georgia and the Workers Center at the Economic Justice Coalition.

This is HUGE news for the craft beer industry.

Employers, for the love of God, please stop banning employees from discussing their wages

I came across the following recent post on the legaladvice subreddit.

Work for a brewery. GM and owner … informed everyone that we needed to sign a contract essentially stating that if ANY employee was found to be discussing wages, they would be terminated immediately.… As of last week, GM let everyone know that any employee who hasn't signed the paper will be looked at as a voluntary resignation. I should probably add that, of course, we have no union.

This is what we labor and employment lawyers call … what's the term … ILLEGAL. 

A tale of two employee nondisclosure agreements

"It was the best of times, it was the worst of times…." This is perhaps the most famous opening line in the history of literature, A Tale of Two Cities, by Charles Dickens. It's also an apt description of how two tech giants—Apple and Twitter—recently handled the issue of employee nondisclosure agreements.

Musings on dead dogs and terminated managers

We are no longer taking ANY EXCUSE for calling off. If you're sick, you need to come prove it to us. If your dog died, you need to bring him in and prove it to us. If it's a "family emergency," too bad. Go work somewhere else.

That was part of a written message an Olive Garden manager in Kansas recently delivered to his staff. The message that Olive Garden corporate delivered to that manager — "You're fired."

I have zero sympathy for insubordinate employees who are fired

This is how it started.

This is how it's ended (for now).

In the intervening 48 hours, Elon Musk reportedly fired dozens of Twitter employees who criticized him publicly on Twitter and privately in the company's Slack channel. The first to go was Eric Frohnhoefer, a Twitter engineer who publicly challenged Musk's knowledge of how the app's backend actually works. Other employees, like this one, took to Mastodon to challenge Musk's termination of Frohnhoefer in obscenity laced rants.

If your surveilling employees, the NLRB is watching you

Wearable trackers. Security cameras. GPS trackers. Keyloggers. Live webcam monitoring. Technology has made it easier for employers to monitor and manage their employees' productivity and discipline employees who fall short of expectations. Moreover, technology makes it possible for employers to continue tracking employees after the workday ends via employer-issued cellphone or wearable devices, and apps installed in employees' own devices.  

Employers are monitoring employees, and the NLRB is monitoring employers' use of these monitoring technologies.

NLRB General Counsel Jennifer Abruzzo just issued a memo on Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights.

Are unions cool (again)?

Are unions cool again? Were they ever cool? 

On the most recent episode of Good Morning, HR, I sat down with host Mike Coffey to discuss the current wave of unionization that is sweeping the nation.

• The main factors causing a renewed focus on unionization.
• How Gen-Z has been energized to pursue safe and fair workplace environments.
• The signs that employees are ready to unionize.
• The best way that employers can avoid unionization.
• Actions employers should take when faced with an organization effort.
• The limits of employers and organizers during a union campaign.

You can listen on Apple Podcasts, Spotify, Google Podcasts, Stitcher, on the Good Morning, HR website, and everywhere else you get your podcasts. You can even watch on YouTube.

To whet your appetite, here's a quick tease. I answer the question, "What should the employer do when they first get wind that there's card collection activity going on?"

This is what buyers’ remorse looks like

On May 9, 2022, the baristas working at the Starbucks store located at 1123 NW 63rd St., Nichols Hills, OK 73116 voted 10-9 to unionize. It was the first unionized Starbucks in the State of Oklahoma.

On the heels of the "victory," Collin Pollitt, the barista that led the unionization movement in that region, said this: "Today, we have become true partners in our organizing for a more just labor structure, where workers have a say in their workplace and earn a baseline living wage. We have reined in corporate power, and we carry on the banner of Martin Luther King Jr. with the idea that all labor has dignity."

A mere 163 days later, however, it appears that the store's employees have caught a case of buyer's remorse, as they have filed a decertification petition with the National Labor Relations Board. Unfortunately for them, however, whether they still want to be unionized or not, their petition and decertification effort is doomed to fail, and they will be stuck with their union, at least until May 9, 2023.

Unions: fad or trend?

Last Friday I joined my good friend Eric Meyer via Zoom on his weekly Employer Handbook Zoom Office Happy Hour. Our topic: whether the recent rise in union popularity and success is a fad or a trend. 

If you missed it live, you can watch the video replay via The Employer Handbook YouTube Channel.

And if you're the kind of person who wants to hear more of my voice (and who isn't?), then please check out this week's episode of The Norah and Dad Show, the podcast I co-host with my daughter. It's available via Apple Podcasts, Spotify, Google Podcasts, Overcast, Amazon Music, Stitcher, the web, and everywhere else you find podcasts.