LexisNexis® Legal Newsroom
It’s Okay to “Gossip” in the Workplace, as Long It’s Not “Negative,” Says the NLRB

Earlier this year , I noted that the NLRB is starting to examine workplace gossip policies. Last week, the NLRB reminded us of the importance of avoiding broad-based prohibitions on workplace communications. In Hills & Dales General Hospital [pdf] [ an enhanced version of this decision is available...

Hypothetical Violations Doom Employer Confidentiality Policy

A few months ago I posted on the NLRB’s veto of a workplace confidentiality policy . Late last month, the 5th Circuit court of appeals ruled on another employer confidentiality policy, and the results should trouble employers everywhere. At issue in Flex Frac Logistics v. NLRB [ an enhanced...

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...

Threatening the Boss: the NLRB Weighs In

An employee who is engaging in protected, concerted activity and is responding to an employer's unfair labor practice may nevertheless lose the NLRA's protection when the employee engages in indefensible or abusive conduct towards supervisors. The typical scenario occurs during conversations...

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...

When Retaliation Stands the Test of Time

Often when we consider the issue of temporal proximity in a retaliation case , we examine it from the standpoint of whether temporal proximity is sufficient to infer retaliatory intent when the adverse action happens right on the heels of the protected activity. What happens, however, if the converse...

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...

Final Score: HIPAA 1 - Retaliation 0

See how a federal appellate court shut out a plaintiff's claims of retaliation after she was fired for forwarding confidential documents to herself, purportedly to preserve evidence for an age-discrimination lawsuit filed by a former coworker. What I did there, you see that? In New Jersey,...

Ohio: Court Eases Proof Requirements Related to Retaliatory Discharge Actions

An Ohio appellate court has indicated that former court decisions, including at least one by the state’s Supreme Court, should not be read as requiring a former employee to prove, as the first of three required elements of a retaliatory discharge claim, that he or she had suffered a workplace injury...

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:...

For Want of a Well-Placed Pickle: Will Your Termination Pass the Red-Face Test?

Have you ever refused to eat at fast food sandwich because the pickles were off? Not “off” as in omitted, or “off” as in taste, but “off” as in alignment, or, these pickles are arranged in a triangle and not in a square on my patty? If you answered “yes”...

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...

States With Pro-Employee Laws: No Firing For Legal Off-Duty Activity

Here in Florida, like many states, you can be fired for pretty much anything as long as it isn't discrimination, whistleblowing, making a worker's comp claim or some other protected activity. That means you can be fired because your boss doesn't like your hobby, your friends, the fact that...

New Anonymous Workplace App Raises Big Workplace Issue

Have you heard about Memo ? It’s an iPhone app that allows individuals to post anonymous comments, both positive and negative, about their employers to a specific group page about the company. As you could imagine, it’s the negative posts that will get the lion’s share of attention...

More Than Words: Defending Michigan Whistleblowers' Claims

Plaintiffs who sued under the Michigan Whistleblowers' Protection Act had a difficult time surviving summary disposition motions in the trial court or sustaining a verdict in the court of appeals. Frequently the issue focused on whether the plaintiff was engaged in protected activity. This focus...

New NLRB Memo on Employee Handbooks

The NLRB General Counsel issued a new memo: Report of the General Counsel Concerning Employer Rules . The overall theme is that employers may violate the National Labor Relations Act (NLRA) by merely maintaining a workplace rule that chills protected activity. Frankly, the memo is a tad on the hypersensitive...

NLRB Upholds Racist Speech as Protected Activity Under National Labor Relations Act

by Andrew J. Barber In a ruling which was a bit of a surprise to some in the employer community, a Judge of the National Labor Relations Board recently concluded that racist a speech made during picketing of an employer qualified as protected activity under Section 7 of the National Labor Relations...

Is Protected Activity Part of Your Job? You May Still Be Protected.

“Doing your job? The NERVE!” If you try to prevent or end workplace discrimination as part of your job, is it legal for your employer retaliate against you? Inquiring HR professionals, in-house lawyers, and counselors want to know! The U.S. Court of Appeals for the Third Fourth Circuit...

NLRB Re-Affirms That Workplace Policies Cannot Restrict Non-Work-Time Solicitations

Have you recently reviewed your company’s Electronic Communications Policy, and other policies that regulate how employees use your email and other computer systems? If not, you might want to consider putting that to-do on your short list. Late last year, in Purple Communications , the NLRB...

Pennsylvania Supreme Court on Knowledge Requirement for Unfair Labor Practice

On Tuesday, the Supreme Court of Pennsylvania (aka SCOPA) issued an interesting Public Employe Relations Act (PERA) opinion - Lancaster County v. PLRB [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ]. It's a fairly complex case with a 42-page opinion, but one...