Labor Law Articles

Almost Anything Goes in the Name of Protected Concerted Activity

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For those who follow the NLRB’s expansive take on protected concerted activity, a recent case continues to push the boundaries. The Second Circuit affirmed a NLRB decision upholding an employee’s right to curse out his supervisor on Facebook because the language was part of a statement concerning workplace concerns, and occurred just days before a union representation vote.  NLRB v Pier Sixty, LLC., 855 F. 3d 115 (2d Cir, 2017).

NLRB Continues Tightening Grip on Non-Union Employers

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            Many non-union employers are becoming increasingly familiar with their obligations under the National Labor Relations Act (NLRA) as the National Labor Relations Board (NLRB) continues to widen the definition of permissible employee conduct under the Act.  Ostensibly, behavior that most employers would have considered unacceptable several years ago is now routinely found by the NLRB to be proper in today’s workplace.

NLRB Provides Handbook Language Guidance

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            The General Counsel for the National Labor Relations Board issued a report providing guidance to employers when drafting employee handbooks. Report (GC 15-04). Over the past few years many standard handbook provisions have been found to violate section 7 of the National Labor Relations Act. That section allows both union and non-union employees to engage in protected concerted activity for their mutual aid and protection. Employers have struggled to keep current with the rapidly changing requirements, and have often found that their good faith efforts to comply fall short of the Board’s expectations. The new report sheds greater light on what has become an extremely nuanced approach to handbook drafting.  

Employees Can Use Company Email for Union Organizing and Other Concerted Activities

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              In its relentless pursuit of expanding non-union employee rights, the National Labor Relations Board (“NLRB” or “Board”) overturned past precedent by ruling that employees can now use their company email accounts to communicate about union organizing activities, and their terms and conditions of employment. Purple Communications, Inc., and Communications Workers of America, 361 NLRB no. 126 (Dec. 11, 2014). Just seven years earlier, the NLRB had ruled that employers could prohibit employees from using company email systems for non-work related purposes, including collective workplace concerns, as long as any prohibitions were not limited to banning protected activities under the National Labor Relations Act (“NLRA” or “Act”). Register Guard, 351 NLRB 1110 (2007).

NLRB Continues Scrutiny of Non-Union Practices*

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            The National Labor Relations Board (NLRB or Board) continues to scrutinize non-union employer practices for compliance with the National Labor Relations Act (NLRA or Act). Under Section 7 of the Act, employees have the right to engage in concerted activities for their mutual aid or protection. Section 8(a)(1) of the Act makes it unlawful for an employer through statements, conduct, or adverse employment actions to interfere with, restrain, or coerce employees in the rights guaranteed by Section 7. The test for evaluating whether an employer’s conduct or statements violate Section 8(a)(1) is whether the statements or conduct have a reasonable tendency to interfere with, restrain, or coerce union or protected activities. If the work rule expressly restricts Section 7 activity, it is unlawful. However, even if the rule does not explicitly restrict Section 7 activity, it is unlawful if employees would reasonably construe the language of the rule to prohibit Section 7 activity.


 

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