Tag Archive | protected activity

Update on Persuader Rule

Department of LaborYou have probably heard discussion of the United States Department of Labor’s Final Rule published March 24, 2016, related to “persuader” activities. This Rule was established under the Labor-Management Reporting and Disclosure Act.

Under this Rule, an employer and its attorney are each obligated to report any arrangement in which a direct or indirect object of the service by the attorney is to persuade employees about the manner in which they exercise rights to organize and bargain collectively. Reports are to be made to the DOL. As slated, the Rule will be applicable to agreements and activities from July 1, 2016 forward.

House Republicans have introduced a joint resolution seeking to block the Final Rule and noting disapproval.

Read the latest Wilson Worley employment newsletter: The National Labor Relations Board Revives its “Ambush” Election Rules

ImageSam Booher offers our most recent newsletter:

The National Labor Relations Board (“NLRB”) has once again proposed amendments to its rules that will further hinder the ability of businesses to defend against union organizing efforts. Those proposed amendments, commonly referred to as the “ambush election rules,” would allow union elections to be held in as little as 10 days after a union representation petition is accepted by NLRB. . . .

To read the full newsletter, click here.

Senate Confirms NLRB Appointments

NLRB logoFor the first time in ten years, the National Labor Relations Board has five board members who have been confirmed by the Senate.  In a July 31 press release, Chairman Pearce stated, “Yesterday’s votes in the Senate to confirm all five of President Obama’s nominees to the National Labor Relations Board will revitalize our commitment to protect the rights of American employers and employees under the National Labor Relations Act.”  The full press release is available on the NLRB website by following this link.  The board is made up of three members of the administration’s party.  With Senate endorsement, the board is expected to conduct rulemaking activity and begin releasing new decisions.

Remember that actions by the NLRB often affect nonunion workplaces as well as union shops.

USERRA Protections

userraWith the recent observance of Memorial Day and the anniversary of D-Day, it is a good time to remember that federal and state law establish protections for current military personnel.  The Uniformed Services Employment and Reemployment Act (USERRA) provides rights for employees of private employers who serve in the Armed Forces, Reserves, National Guard or other “uniformed services.”  USERRA prohibits private employers from discriminating or retaliating against employees based on their service and offers benefits, reemployment rights, and some protection from termination after military leave.

Tennessee also has a military leave statute that offers protections to employees.  The state law protects private employees who serve in the state militia, the reserve component of the U. S. armed forces or the Tennessee National Guard, or who attend military schools for a limited period.

Also, don’t forget that employers must display USERRA rights posters in the workplace.  And there are FMLA regulations that attach to military personnel and family caregivers of military personnel.

For more information on USERRA, you can visit the website of the U. S. Office of Special Counsel here:  http://www.osc.gov/userra.htm.

What You Need to Know About NLRB Actions in 2012 on Common Employee Handbook Policies, Part 2

Confidentiality Policy

The NLRB found a confidentiality policy to be overbroad.  While employers have a legitimate, business interest in restricting the improper disclosure of propriety information, a policy may violate Section 7 if confidential information is defined too broadly.  This violation could happen if the definition prevented an employee from discussing the terms or conditions of employment.  For example, a prohibition against disclosing personnel information to any person outside the business when the employee could face legal action or firing may be too broad because is prohibits employees from talking about their own personal wages or job conditions.

At-Will Policy

Tennessee is an at-will employment state.  Many employers adopt policies making clear that employees are working at-will.  The NLRB ruled that policy language saying that the at-will employment relationship cannot be modified or altered would violate the NLRA because employees may request to change at-will status.  The NLRB Acting General Counsel then released Advice Memoranda reviewing at-will employment clauses from two employee handbooks, noting that both were lawful under the NLRA.

Policy impacting use of Social Media

Whether in the context of harassment, bullying, social media, or communications, policies that restrict comments made on social media could arguably have a chilling effect on an employee’s Section 7 rights.  Policies that have zero tolerance language are ripe for concern.  Comments or communications by the employee may constitute concerted activity if they are for the purpose of mutual aid or protection.  If the comments are made as a step toward group action to defend workers, then the action may be protected.

Policy restricting Negative or Adverse Comments

A policy that restricts employees from making statements that purportedly damage the business, defame another individual, or damage another person’s reputation may be considered overbroad because it could prevent an employee from engaging in protected communications critical of the employer or its representatives.  Policies against malicious, abusive, or unlawful behavior are not objectionable.

What You Need to Know About NLRB Actions in 2012 on Common Employee Handbook Policies

POLICY MANUALEven though the NLRB is currently under fire and courts are striking down its rulings made after the recess appointments, it may still be useful to consider the rulings related to employment policies.  The NLRB was very active last year reviewing policies from employee handbooks.  Many of these policies had been utilized without question by employers for years.   The basis for the scrutiny has been that some of these policies interfere with rights to protected concerted activity under Section 7 of the NLRA.  These considerations are important because Section 7 does not apply merely to union workplaces.

Section 7 of the NLRA, in effect since 1935, offers employees the right to engage in protected concerted activity for their mutual aid or protection concerning the terms and conditions of their employment.  An employee may prove a violation by establishing:

  1. Employees would reasonably construe the language to prohibit protected activity;
  2. The rule was created in response to union activity; or
  3. The rule has been applied to restrict the exercise of protected rights.

In 2012, the NLRB called these types of policies into question:

  1. Confidentiality Policy;
  2. At-Will Policy;
  3. Policy impacting use of Social Media
  4. Policy restricting Negative or Adverse Comments.

My next post will discuss the issues raised about these four categories of policies.

New Wilson Worley Employment Newsletter on NLRB Stance on Social Media and EEOC Position Related to Education Requirement and ADA

For the most recent employment newsletter by Sam Booher of the Wilson Worley Employment Section, click here.  He outlines the NLRB’s softening of its position on whether social media use is a protected activity.  He also outlines that the EEOC has opined that a blanket requirement of a high school diploma may violate the Americans with Disabilities Act.  Our employment attorneys provide monthly newsletter updates.