Tag Archives: National Labor Relations Board

Webinar Recording: Employment Practices Facing NLRB Scrutiny

Steve M. SwirskyOn Friday, November 16, I participated in a free 75-minute webinar discussion with Lafe E. Solomon, Acting General Counsel of the National Labor Relations Board.  The webinar was moderated by Terence H. McGuire of the Practical Law Company.  We discussed:

  • Factors that the NLRB considers when deciding whether to prosecute unfair labor practices based on these employment practices.
  • Legal considerations surrounding these employment practices besides compliance with the National Labor Relations Act.
  • The NLRB’s stance on what is and is not a lawful at will disclaimer.
  • Social Media and communications policies.
  • The NLRB’s position on employer requirements for confidentiality in connection with workplace investigations.
  • Waivers of the right to pursue claims in class actions.
  • What’s next on the NLRB’s prosecutorial agenda and how employers can prepare.

Click here to view this complimentary webinar, “Employment Practices Facing NLRB Scrutiny.”

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Employment At-Will Notices May Violate Federal Law

The National Labor Relations Board (NLRB) has turned its attention recently to at-will notices in employee handbooks.  For example, in Case 28-CA-23443, language in an employee handbook stating “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way” was found by an administrative law judge to be unlawful because […]

For more information please visit www.omwemploymentandlaborlaw.com or click on the headline above.

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NLRB Advises Employers on Lawful At-Will Agreements in Employee Handbooks

By: Steven M. Swirsky and Paul H. Burmeister

In yet another foray into non-union workplace issues, on October 31, 2012, the Office of the General Counsel of the National Labor Relations Board (“NLRB”) issued a pair of Advice Memoranda regarding similar issues with respect to ‘employment at-will’ policies contained in employee handbooks. (Rocha Transportation, 32-CA-086799 PDF and SWH Corporation d/b/a Mimi’s Café, 28-CA-084365 PDF). At issue in each case was at-will disclaimer language in an employee handbook which prohibits the employer’s representatives from entering into employment contracts that could alter an employee’s at-will status.

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NLRB Acting General Counsel Addresses Emerging Labor Issues

2012 has been a year of turmult and shocking developments and 2013  looks to be no different.  From at-will agreements to Facebook firings to employer property rights and employee access and more, the NLRB has kept employers on their toes.  Stay sure footed by getting an update straight from Acting General Counsel Lafe Solomon and Management Memo Editor Steven Swirsky in a 75 Minute Webinar presented by the Practical Law Company discussing:

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Social media policy concerns gain traction as NLRB issues first decisions

In-house counsel can take lessons from two recent NLRB decisions

Arnstein & Lehr Chicago Partner Mark Spognardi and Milwaukee Associate Jesse Dill recently published an article entitled “Social media policy concerns gain traction as NLRB issues first decisions.” The article discusses the National Labor Relations Board’s (NLRB) two recent decisions regarding employers’ social media policy. The decisions are based on the employer social policies of Costco Wholesale Corp. and Karl Knauz Motors, Inc.

Mr. Spognardi and Mr. Dill state, “Readers may recall that over the past year the NLRB Acting General Counsel Lafe Solomon issued a series of memoranda that provided insight into its interpretation of how the National Labor Relations Act (NLRA) applies to social media policies and adverse employment decisions based on social media conduct.”

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NLRB Weighs in on Employee Facebook Posting That Ended in Termination

By: Paul H. Burmeister

In one of the first rulings by the NLRB in a case involving social media, the Board agreed with the order of the ALJ that the firing of an employee for certain Facebook posts were not protected, concerted activity under the NLRA and the termination did not violate Section 7 of the Act. Karl Knauz Motors, Inc.  (PDF)

The employee was a salesman who worked for a BMW dealership in Lake Bluff, Illinois.  He posted several pictures and comments on his Facebook page about two recent events concerning his employer. First, the employee complained about the refreshments served at an ‘Ultimate Driving Event’ touting the release of a new BMW sedan, which occurred several days before.  Second, the employee posted pictures and unflattering comments about an accident at an adjacent dealership, also owned by the same auto group. The pictures and comments were posted several days following the events.  Shortly thereafter, the dealership notified the employee that it was terminating his employment. The dealership said that it was doing so because of his Facebook posts regarding the accident at the adjacent dealership; not because of his complaints about the refreshments at the sales event.

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NLRB Deflates Hotel Bel-Air’s Severance Agreements to Union Employees

By Paul Burmeister

The National Labor Relations Board (“NLRB”) has ruled that negotiations between the Hotel Bel-Air and UNITE HERE Local 11 were not at impasse when the employer implemented its last, best final offer, which included severance payments to union employees. Hotel Bel-Air, 358 NLRB 152 (September 27, 2012). The NLRB upheld the ALJ’s order for the employer to bargain with the Union and to rescind all the signed severance agreements containing a waiver of future employment with the Hotel Bel-Air.

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NLRB Says Employer Can’t Fire Employee for Vulgar and Threatening Statements

Seemingly ignoring the requirements for employers to keep a harassment free workplace and disregarding their right to keep a respectful and orderly environment, last week in Fresenius USA Manufacturing, Inc. the NLRB found that the company committed an unfair labor practice by terminating an employee who admitted to using vulgar and threatening language.

Overturning an administrative law judge’s decision, the NLRB ordered Fresenius to reinstate the pro-union employee who referred to the employees leading a union decertification effort as “Pussies” and threatened that those employees should “RIP”.

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Social Media Alert: The National Labor Relations Board strikes down overbroad social media policy


The decision

The National Labor Relations Board (NLRB) recently struck down a social media policy promulgated by Costco Wholesale Corporation (Costco) as violative of Section 8(a)(1) of the National Labor Relations Act (the Act), which makes it an unfair labor practice for an employer to interfere with, restrain or coerce employees in the exercise of their rights guaranteed by Section 7 of the Act (see 29 U.S.C. §157, §158). Generally, “protected concerted activity” under Section 7 of the Act entails two or more employees acting together in support of matters of mutual interest, such as compensation, benefits or workplace conditions. Id.

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Labor Law vs. Common Sense – NLRB Continues Targeting Non-Union Employers and Common Sense

It seems with each passing month the National Labor Relations Board or its Acting General Counsel opens yet another new front on its assault on non-union employers.  A trend has emerged which puts labor law in conflict with standard employment practices.  From hire, to control of the workplace and employer property, to the manner post-termination disputes are handled, the NLRB is directing employers to ignore conventional wisdom, and often times other legal mandates, to alter the way they deal with their employees.

Much attention has been given to the NLRB’s more direct pro-union organizing efforts like efforts requiring all employers to post an NLRB Rights Poster  and efforts to dramatically alter the timeframe and process for union elections through the new Ambush Election rules.

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