Vorys on Labor

Vorys on Labor

Insights for the Labor Relations Professional

Tag Archives: protected activity

Some Guidance for Employers on Drafting Lawful Conduct Rules

Posted in Employee Handbooks
Earlier this month, the NLRB’s Division of Advice (“Advice”) released a memorandum that opined on a variety of CVS Health’s (the “Company’s”) policies.  It considered whether those policies were “unlawfully overbroad” as they related to employees’ Section 7 rights under the NLRA.  It found that some were, but most were not. The advice memorandum is… Continue Reading

New NLRB Guidance Gives The Green Light On Common Sense Employee Work Rules

Posted in Employee Handbooks, NLRB
Last December, the NLRB recently established a new standard for determining the lawfulness of facially neutral employee handbook policies that “may” restrict the exercise of an employee’s NLRA rights.  As more fully discussed in our prior post, in Boeing Company the NLRB rejected its previous standard for reviewing employer rules and replaced it with a… Continue Reading

Employee Handbooks: The NLRB Pendulum Swings Back Toward Common Sense And Workplace Civility

Posted in Employee Handbooks
The NLRB has recently brought a measure of common sense back to its review of employer policies, including employee handbooks. Since 2004, as a result of the NLRB’s Lutheran Heritage Village-Livonia decision, many facially neutral workplace rules and handbook policies have been held to be an unlawful interference with employees’ rights protected by the NLRA.… Continue Reading

“A Day Without a Woman” May Bring Employers a Day Of Legal Troubles

Posted in NLRB
Heard about “A Day Without a Woman”?  Did your business feel any impacts of “A Day Without Immigrants”?  Not sure how, as a labor professional, you should respond to these developments?  Then you should check out this Labor and Employment Alert that we posted yesterday on our Firm’s website. In the Alert, we discuss the… Continue Reading

Court Disagrees with NLRB Ruling on Dress of Customer-Facing Employees

Posted in Employee Discipline, NLRB, Union Insignia
More than four years ago, the NLRB gave priority to an employee’s right to wear clothing with messages critical of their employer over an employer’s interest in its reputation with customers.  In a case involving AT&T employees, the NLRB ruled that an employer violated the law when it prevented its service technicians, when visiting customer… Continue Reading

Termination for Dishonesty During Internal Investigation Lawful, Says NLRB

Posted in Employee Discipline, NLRB
In a positive development for employers, the NLRB held last week that the termination of an employee for lying during an internal investigation into complaints of harassing/discriminatory conduct was lawful.  Significantly, the decision occurred in a case that had been vacated as a result of Noel Canning. First, a quick review of the facts.  The… Continue Reading

Policies on Employee Appearance and Social Media Use Declared Unlawful

Posted in Employee Discipline, NLRB
Recently, the NLRB, in a three-member panel of Chairman Pearce (D) and Members Hirozawa (D) and Johnson (R), ruled on more employee handbook provisions covering an expanse of topics including social media, employee conduct, and dress and grooming. In Boch Imports, Inc., the NLRB determined that the employer, a car dealer, violated the NLRA by… Continue Reading

Just When You Thought it Couldn’t Get Worse, it Does: NLRB Protects Facebook Attack on Supervisor

Posted in Employee Discipline, NLRB, Union Organizing
Consider this employee’s Facebook post: Bob is such a NASTY MOTHERF___ER don’t know how to talk to people!!!!!!  F__k his mother and his entire f__king family!!!!  What a LOSER!!!!  Vote YES for the UNION!!!!!!! In this case, “Bob” was the employee’s supervisor.  The employee (a banquet server) published the post at least 5-10 minutes after… Continue Reading

NLRB General Counsel Releases New Guidance on Employee Handbooks

Posted in Employee Discipline, NLRB
Last week, NLRB General Counsel (GC) Richard F. Griffin, Jr. released a new report addressing problematic employee handbook provisions which could be “reasonably construed” as having a chilling effect on employees’ Section 7 activity.  Similar to the three reports previously issued by predecessor Lafe Solomon on social media cases, Griffin offers the report as guidance on… Continue Reading

Employers Won’t “Like” This One: NLRB Holds Facebook “Thumbs Up” Is Protected Concerted Activity

Posted in NLRB
By Ashley Manfull Numerous actions by the NLRB’s General Counsel and administrative law judges (highlighted in prior posts on this blog) have caused great concern for labor professionals grappling with the inappropriate comments of employees posted on social media. While these actions have made it difficult enough to determine whether employees’ online comments sufficiently cross the… Continue Reading

Cry “Solidarity” and Let Loose the NLRB: A Significant Expansion of the NLRA’s Protections

Posted in NLRB
A recent NLRB decision will likely result in a significant expansion of the activity the NLRA protects. The case, Fresh & Easy Neighborhood Market, Inc., 361 N.L.R.B. No. 12 (2014) (pdf), arose from a complaint about sexual harassment. A female employee – Elias – placed a message on a whiteboard at the request of her supervisor. A word… Continue Reading

Can You Really Call Your Boss a !$@#%#^&? Maybe, says the NLRB

Posted in NLRB
Employees sometimes get upset at work. Employers and managers sometimes do things that can cause that upset. But many employers, and I suspect many employees, believe there is a line that cannot be crossed in expressing the dismay about an employer’s action(s). There is, not surprisingly, always debate about where that line should be drawn.… Continue Reading

OSHA and NLRB Agree to New Program: Employers Beware

Posted in NLRB
Earlier this week, the NLRB announced (pdf) that it had entered into a new program with the Occupational Safety and Health Administration (“OSHA”).  The new program will likely result in the filing of more unfair labor practice charge complaints with the NLRB.  Under existing law, an employee who believes that she is being retaliated against… Continue Reading

NLRB (Again) Invalidates Employer Conduct Policy

Posted in NLRB
As readers of this blog know, the NLRB is quite interested in what the employee’s handbook or policy manual says.  A recent decision from the NLRB underscores this interest. A hospital published a “Values and Standards of Behavior” policy that, among other things, contained three different rules: A rule prohibiting employees from making “negative comments… Continue Reading

Fifth Circuit Rejects NLRB’s Decision Prohibiting Arbitration Agreement Waivers of Class/Collective Actions

Posted in NLRB
By Ben Shepler The Fifth Circuit Court of Appeals recently provided employers with some welcome holiday cheer. In a 2-1 decision, the Court rejected an NLRB ruling that called into question the wide-spread practice of having employees sign arbitration agreements that bar class or collective actions. While the Fifth Circuit’s ruling largely favors employers, the Court did… Continue Reading

It’s Official: NLRB Confirms Protection for Employees Involved in Facebook Rants Against Coworkers

Posted in NLRB
By Nelson Cary and Ashley Manfull As readers of this blog know, in September 2011, Administrative Law Judge Arthur Amchan was the first NLRB judge to issue a ruling on a Facebook-related termination. In Hispanics United of Buffalo, Inc., ALJ Case No. 3-CA-27872, ALJ Amchan ruled that five employees of a non-profit organization were unlawfully terminated… Continue Reading

Termination Based on Facebook Posting Lawful, but Handbook Policy Unlawful

Posted in NLRB
By Nelson Cary and James Patrick After posting to Facebook sarcastic comments and pictures about an accident that occurred at a neighboring car dealership, owned by the same entity that owned his dealership, the employer terminated the employment of a salesman.  The NLRB unanimously adopted the ALJ’s finding that an employee was lawfully discharged for these… Continue Reading

Employer Request for Confidentiality During Investigation of Complaint Unlawful

Posted in NLRB
An employee complains to human resources about misconduct by another employee.  Human resources begins an investigation to determine whether the complaint is true.  During its investigation, it requests that employees it interviews keep the matter confidential.  Unlawful?  Potentially so, according to the NLRB majority in Banner Health System, 358 N.L.R.B. No. 93 (2012), a decision released yesterday.  … Continue Reading

NLRB Announces Webpage Describing Employee Rights

Posted in NLRB
A new page on the NLRB’s website went live today.  According to the NLRB, the page "describes the rights of employees to act together for their mutual aid and protection, even if they are not in a union."  The NLRB’s action is consistent with its push in the last couple of years to increase awareness of rights afforded under… Continue Reading