As those of you who pay attention to the National Labor Relations Board know (which should be all employers, since the National Labor Relations Act applies to unionized and non-union employers alike), the issue of social media policies is an area particularly fraught with confusion. In many circumstances, the Board has found such policies – or certain provisions in such policies – to unlawfully restrict employees’ rights under the Act to communicate about the terms and conditions of their employment. Thus, we labor practitioners rabidly follow each pronouncement of the Board or its General Counsel on this issue, trying to ascertain the legal parameters of such policies.
Continue Reading Wait! What Does the NLRB Think About Social Media Policies?!!!

The National Labor Relations Board has now addressed the use of mandatory arbitration agreements following the U.S. Supreme Court’s 2018 decision in Epic Systems v. Lewis, which upheld the enforceability of arbitration agreements containing waivers of the right to bring class or collective actions over employment-related disputes, rejecting the NLRB’s then-position that such waivers violate the National Labor Relations Act (NLRA), as discussed in our prior E-lert.
Continue Reading NLRB Expands Scope of Mandatory Arbitration Agreements

In May of 2013, some Walmart employees boarded buses bound for Bentonville, Arkansas to attend the Company’s annual shareholders meeting. The buses formed a caravan, picking up employees at Walmart locations on the way. The employees handed strike letters to their managers before departing.

The caravan was dubbed the “Ride for Respect.” It was organized by OUR Walmart, a group formed with the assistance of the United Food and Commercial Worker Union (UFCW). Once in Bentonville, the employees held demonstrations, attended the shareholder meeting, and engaged in other activities to publicize their grievances.
Continue Reading Ride for Respect: Intermittent “Hit and Run” Strike or Presumptively Protected Work Stoppage?

In a rare unanimous decision, on a closely-watched issue, from all four sitting members of an ideologically-divided National Labor Relations Board, the Board ruled that an employer’s arbitration agreement unlawfully restricted employee access to the Board and its processes.
Continue Reading Arbitration Agreement May Not Restrict Access to NLRB Processes

Here’s another in my sometimes series of crazy things that employees (and, in this case, the National Labor Relations Board) do. Although the Board initially thought that employees playing driving games at highway speeds was protected activity (?!!), it has (fortunately for the rest of us drivers) rethought that position after being slapped down by the U.S. Court of Appeals for the D.C. Circuit.
Continue Reading Extraordinary Employee Misconduct: High-Speed Highway Harassment

The General Counsel (GC) of the National Labor Relations Board issued a memo on October 24, 2018 that focused on the unions’ duty of fair representation to their bargaining unit members. Numerous commentators, including management-side attorneys (as I am), trumpeted the fact that the Board is holding unions accountable. There seemed to be a feeling that, after years of employers being attacked by a left-leaning Board, the playing field is being re-leveled. But, as my partner Mike McGuire pointed out, is this really good for employers?
Continue Reading Does Holding Unions Accountable Help Employers?

On June 6, 2018, the General Counsel of the National Labor Relations Board issued guidance on lawful and unlawful handbook rules under the National Labor Relations Act. This guidance follows the GC’s December 1, 2017 withdrawal of prior guidance on handbook rules that had been issued in 2015. Shortly thereafter, on December 14, 2017, the Board issued its decision in The Boeing Co., in which it articulated a new and more balanced test for assessing the legality of workplace rules, applicable to both unionized and non-unionized employers. 
Continue Reading NLRB Issues New (And More Balanced) Guidance on Handbook Rules

Many employers would like to ensure that employees focus on their work during their working time – after all, that’s what they’re being paid to do! One way employers attempt to prevent distractions is by implementing a policy that prohibits employees from soliciting their co-workers (Buy cookies! Participate in this raffle! Come to my church supper! Join a union!) or giving them written materials to read while at work.
Continue Reading Guidelines for a Valid No-Solicitation/No-Distribution Policy

Practitioners of labor law know that the 5-member panel comprising the National Labor Relations Board is appointed by the President of the United States. The Board majority (three members) are from the President’s party and the remaining two members are from the other party. As the administration changes, so does the Board majority.
Continue Reading Recuse Me? Why the NLRB’s Order Vacating the Hy-Brand Decision Should Not Stand