Foley & Lardner Labor and Employment Law Weekly Update (Week of September 19, 2011)

Hispanics United of Buffalo - The NLRB Goes Online! by John Douglas A little known feature of the federal law governing labor relations in the private sector - the National Labor Relations Act (NLRA) - is the right of even non-unionized employees to engage in so-called "protected concerted"...

NLRB Judge Holds Nonprofit Unlawfully Discharged Employees For Facebook Posts

A National Labor Relations Board Administrative Judge has found that a Buffalo nonprofit unlawfully discharged employees after they posted Facebook comments about working conditions including work load and staffing. Click here for NLRB site announcement. Following a co-worker's comments on Facebook...

Fulbright Forum – All Employers Beware: The Long Arm of the NLRB – New Employer Posting Requirements and Protection of Employee Communications on Facebook, Twitter and YouTube

The International Law Firm of Fulbright & Jaworski - Labor and Employment William Patrick Finegan and Barbara Jean D'Aquila Recent activity of the National Labor Relations Board (NLRB) reminds non-union employers that the long arm of the National Labor Relations Act (NLRA) reaches...

Hot Dog! Another Social Media Decision from the NLRB (and Employers Should Pay Attention)

A few weeks ago, an NLRB Administrative Law Judge issued the agency's first-ever decision debating the legalities of terminating employees for social media activities under federal labor laws. Karl Knauz Motors, Inc. (9/28/11) [pdf] is the second. Following Knauz Motors , we are starting to...

Pyrrhic Victory: Judge OK's Firing for Facebook Post, But...

Last week, a National Labor Relations Board Administrative Law Judge (ALJ) ruled, for the first time, that an employer could legally fire an employee based on Facebook activity. In Karl Knauz Motors, Inc. d/b/a Knauz BMW and Robert Becker , the ALJ okayed a BMW dealership firing an employee who posted...

Social Media and the NLRB: Getting Both Sides of the Story

When the media first began covering the NLRB's settlements involving discipline of employees for using Facebook, the impression that was given was that the settlements reflected established NLRB policy. In reality, the settlements were no more than that; the employer position in a given case...

NLRB Social Media Memo Part IV - Overly Broad Policies

This post has been a long time coming... but at long last it's the final post in the four-part series on the NLRB's social media memo . This post will address the NLRB's position on (what it views as) overly broad social media policies. Obviously, employers can't expressly ban...

The Social Media Trifecta – The SHRM, Nielsen and NLRB Reports – Part One

There has been so much talk lately about the future of social networking and the need for a well-drafted social media policy that I can hardly keep up. Good thing I don't have to. Several reports - from SHRM, Nielsen, and the NLRB Office of the General Counsel - have caught my eye. Together,...

The Social Media Trifecta – The SHRM, Nielsen and NLRB Reports – Part Two

Part two of the trifecta is the Nielsen State of Social Media Report . It focuses on how powerful social media is on consumer behavior . This report is a little less law and a little more social media , but I wanted to include it in this summary because I was completely entertained when reading it...

Social Media and Privacy Cannot Coexist

During my appearance on The Sound of Ideas to discuss social media in the workplace , NLRB General Counsel Lafe Solomon made an interesting point about the accessibility of employees' social media by employers. The question arose as to whether employees can short-circuit workplace problems by locking...

The Social Media Trifecta – The SHRM, Nielsen and NLRB Reports – Part Three

Jumping back into part three of the trifecta, addressing the impact of social media on the policies and practices of companies, the NLRB released a report detailing 14 cases from the past year - many of which I covered in Employment and the Law . I read this report awhile back, but never got around...

Baseball Has a New Social Media Policy. And It May Be Unlawful.

The National Labor Relations Board stresses that employees must be able to discuss their jobs freely. The National Labor Relations Board , which helps administer the provisions of the National Labor Relations Act , believes that social-media policies are overly broad if they unfairly restrict...

Second ALJ Decision on Social-Media Policies Under the NLRA

The lawfulness of employer's social-media policies under the National Labor Relations Act (NLRA) continues to be a hot topic. Although the position of the National Labor Relations Board (NLRB) continues to be hostile towards these policies. And, without court decisions on the question, employers...

NLRB continues to attack facially neutral employment policies

The NLRB continues its assault on garden-variety employment policies, issuing three decisions over the last 10 days, each of which concluded that facially neutral employment policies violated employees' rights to engage in protected concerted activity. The cases are Flex Frac Logistics, LLC [pdf...

Why We Put Plaintiffs to Their Proof

Because of the relative newness of the issue, it always seems newsworthy when the NLRB issues a social-media decision. World Color (USA) Corp. (NLRB 2/12/14) [ an enhanced version of this decision is available to lexis.com subscribers ], however, is much ado about nothing, but nevertheless reminds us...

NLRB Judge Gives Booby Prize to Hooters' Workplace Policies

In Hooters of Ontario Mills [pdf] , an NLRB Administrative Law Judge found that a California franchisee of Hooters unlawfully fired a waitress for complaining about a bikini contest that she perceived as fixed [ an enhanced version of this opinion is available to lexis.com subscribers ]. In the same...

Does the NLRB "Like" Your Social Media Policy?

A recent decision from the National Labor Relation Board's ("NLRB's") Division of Judges further exemplifies the NLRB's proactive approach in scrutinizing both union and non-union employers' social media policies. In Kroger Co. v. Granger , the judge found that several provisions...

NLRB Judge Holds That Even Individual Acts Can Constituted Protected Concerted Activity

Webster’s Dictionary defines “concerted” as, “done in a planned and deliberate way usually by several or many people; mutually contrived or agreed on.” Given this definition, I was surprised when I read a decision by an NLRB Administrative Law Judge, which held that a lone...

Apparently, “Information Security” Is Now an Unfair Labor Practice

In Fresh & Easy Neighborhood Market (7/31/14) [pdf] [an enhanced version of this opinion is available to lexis.com subscribers] , the NLRB examined the following “Confidentiality and Information Security” policy: We have an important duty to our customers and our employees to respect...

Facebook Firing Causes Unfair Labor Practice Double Play For NLRB

In Triple Play Sports Bar & Grille [pdf] , the NLRB unanimously concluded that an employer unlawfully fired two employees for their off-duty Facebooking, and less-than unanimously concluded that the same employer’s social media policy was unlawfully restrictive [an enhanced version of this...

Harassment Investigations: New NLRB Decision Complicates Them Even More

A recent decision by the National Labor Relations Board (“NLRB”) has complicated even further the already challenging world of conducting investigations into allegations of workplace harassment. In light of this new ruling, it’s ever more important employers use well-trained investigators...

Loyalty: Extinct Under the NLRA?

Section 8.01 of the Restatement Third of Employment Law states that employees owe a duty of loyalty to their employers in matters related to the employment relationship. Employers realize that under the Obama Board, the inclusion of that statement would violate the act because it is overly broad and...

Add “No Loitering” to the List of Potentially Unlawful Work Rules, Per the NLRB

It’s no secret that the NLRB is waging a war against facially neutral employment policies. You can add “no loitering” rules to its list of victims. In EYM King of Michigan , an NLRB administrative law judge considered the following policy, implemented by a Burger King franchise:...

Microsoft and Protected Concerted Activity Under the NLRA: A Chilling Effect?

Employers are now well aware that the NLRB is reviewing their policies, procedures, and employee handbooks to see if there is either a direct prohibition against employee conduct protected under § 7 of the NLRA or if there is a "chilling" effect on those rights. Employers are also finding...

Facebook Posts Too Insubordinate, Lose NLRA Protection

Yesterday, I covered the NLRA and concerted protected activity in my employment law class at Penn State. Here's the text from one of my slides: Protected Concerted Activity • Concerted - acting in “concert” with other employees (not just for employee’s individual benefit...