Tag Archives: NLRB

The NLRB Takes Aim At Non-Compete Provisions

The NLRB has been flexing its muscle this year. First came the McLaren Macomb decision, where the Board found that confidentiality and nondisparagement provisions in severance agreements for non-supervisors violated the National Labor Relations Act. On May 30th the NLRB General Counsel issued a memorandum and took aim at noncompete agreements.

The General Counsel’s memo states that except in limited circumstances the “proffer, maintenance and enforcement ” of noncompete provisions violates the Act, because, in her opinion, noncompete provisions “reasonably tend to chill employees” in the exercise of their Section 7 rights under the Act to engage in concerted activity for mutual aid and protection in their employment. The General Counsel listed five specific types of protected activity under Section 7 that is chilled by noncompete provisions:

  1. Concertedly threatening to resign to demand better working conditions, because the threats would be futile due to the noncompete;
  2. Carrying out concerted threats to resign or concertedly resigning in an effort to secure better working conditions;
  3. Concertedly seeking or accepting employment with a local competitor to obtain better working conditions;
  4. Soliciting coworkers to go to work for a local competitor as part of a broader course of protected concerted activity; and
  5. Seeking employment, at least in part, to specifically engage in protected activity with other workers at an employer’s workplace.

The General Counsel opined that facts which are typically recognized by most courts as special circumstances which justify a noncompete, including specialized training and protecting trade secrets, are insufficient to overcome the chilling effect on Section 7 rights. Her rationale is that less restrictive means, such as a longevity bonus and a confidentiality agreement, protect those interests without the unreasonable chilling effect.

The General Counsel opined that noncompetes that only restrict managerial or ownership interests in a competing business and noncompetes with a true independent contractor do not violate the Act. She also stated that there may be other special circumstances to justify a narrowly tailored noncompete that would not violate the Act.

The General Counsel also encouraged the Board to award make whole relief, lost pay and benefits for example, if there is proof that an overbroad noncompete caused the employee to lose opportunities for other employment.

The memo is not law, but you can be certain that the Board with an existing or future case will try to make it the law in the near future.

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NLRB Establishes More Employer-Friendly Standard Governing Workplace Policies

Earlier this month the NLRB reversed its decision in Lutheran Heritage Village-Livonia.  In doing so the Board set a new standard for review which is more employer-friendly.
Under the prior Lutheran Heritage standard, the Board found that employers violated the NLRA by maintaining workplace rules that do not explicitly prohibit protected activities, were not adopted in response to such activities, and were not applied to restrict such activities, if the rules would be “reasonably construed” by an employee to prohibit the exercise of NLRA rights.
In place of the Lutheran Heritage “reasonably construe” standard, the Board established a new test: when evaluating a facially neutral policy, rule or handbook provision that, when reasonably interpreted, would potentially interfere with the exercise of NLRA rights, the Board will evaluate two things: (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule.
The Board also announced that, prospectively, three categories of rules will be delineated to provide greater clarity and certainty to employees, employers, and unions.
• Category 1 will include rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule.  Examples of Category 1 rules are the no-camera requirement maintained by Boeing, and rules requiring employees to abide by basic standards of civility.  Thus, the Board overruled past cases in which the Board held that employers violated the NLRA by maintaining rules requiring employees to foster “harmonious interactions and relationships” or to maintain basic standards of civility in the workplace.
• Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.
• Category 3 will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule.  An example would be a rule that prohibits employees from discussing wages or benefits with one another.
Applying the new standard, the Board concluded that Boeing lawfully maintained a no-camera rule that prohibited employees from using camera-enabled devices to capture images or video without a valid business need and an approved camera permit.  The Board majority reasoned that the rule potentially affected the exercise of NLRA rights, but that the impact was comparatively slight and outweighed by important justifications, including national security concerns.
While this standard is more employer-friendly, employers should be mindful that  applying a lawful workplace rule or policy to an employee that has engaged in NLRA-protected activity may be unlawful, depending on the circumstances.  As always, when in doubt consult with your lawyer.
Happy New Year!
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Social Media and the Law

Below is  a link to a recent interview I did with WBIR in Knoxville about social media and the law.  Happy New Year! http://www.wbir.com/story/news/local/2015/01/07/more-employers-adding-social-media-policies/21373181/

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Employee Who Posted FIRE ME on Facebook Gets Her Wish

The NLRB recently held that the termination of an employee because of disparaging comments she posted about the employer  in a group message on Facebook did not violate the NLRA.  The comments contained derogatory language and expletives, and included “FIRE ME” and “Make my day”.

The NLRB held that the comments reflected the employee’s personal contempt for her co-worker and her supervisor and not shared employee concerns about terms and conditions of employment.  Therefore, the employee did not engage in concerted activity under Section 7 of the NLRA.

Before taking action against an employee because of  comments on social media, employers need to consider several factors.  These include, but are not limited to, the following: What is the content of the message? Are the comments based on the terms and conditions of employment?  Is the employee acting alone or with or on the authority of other employees?  Is there a legitimate problem at work that needs to be addressed?

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NLRB Lightens Up On At Will Disclaimers And Confidentiality Of Investigations

Recently the NLRB’s General Counsel issued two memos which greatly improve the positions the Board had previously taken on the legality of At Will Disclaimers and requiring the confidentiality of investigations.

In the memo addressing At Will Disclaimers the Board determined that the following language is lawful: ” Only the Company President is authorized to modify the Company’s at-will employment policy or enter into any agreement contrary to this policy.  Any such modification must be in writing and signed by the employee and the President.”  The Board reasoned that the language is lawful because it provides that the at will relationship can be modified in the future.

In the memo addressing the confidentiality of investigations the Board provided us with the following language which it found to be lawful: ” [Employer] may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence.  If [Employer] reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.”

Based on these memos employers should do the following:

1.  Make sure that your At Will Disclaimer provides for the ability to modify the relationship.  Limiting the ability to modify to the President and requiring that it be in writing is permissible.

2. When you impose a confidentiality requirement on an investigation have a specific, reasonable reason for doing so.  Protecting witnesses from intimidation or retaliation, preserving evidence and preventing witnesses from collaborating are certainly reasonable reasons for preserving confidentiality.

Here’s hoping the NLRB continues to be reasonable!

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Is Your Confidentiality Policy Legal?

Most employers have a confidentiality policy that is distributed to all employees.  Most of those policies broadly define confidential information.  But if your policy defines confidential information to include employee wages and salaries is it legal?

A confidentiality policy that prohibits employees from discussing wages, salaries or other terms and conditions of employment is illegal because it violates the National Labor Relations Act (NLRA).  This fact was reinforced in a recent ruling  against Aerotek Inc. after two of its recruiters in Nebraska told several employees they were not allowed to disucss their wages as a condition of employment.

Employers need to make sure that their confidentiality policy gives specific examples of what constitutes confidential information, such as business plans and profit margins, and does not prohibit employees from discussing their wages, salaries, working conditions or other terms and conditions of employment.

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Obama’s NLRB appointments struck down

Today the D.C.  Circuit Court of Appeals held in a unanimouns ruling that President Obama’s appointments to the NLRB while the Senate was in recess were unconstitutional.  The Court based its holding on the fact that the Senate technically remained in session during the  20 day “recess” and thus the President could not appoint a member to the NLRB without Senate confirmation.

Expect this decision to be appealed to the United States Supreme Court.  If the decision is upheld, or the Supreme Court doesn’t take the case, all the decisions by this improperly appointed Board will be invalid.  The majority of those decisions, including decisions on social media policies and at-will disclaimers, are very anti-employer.  This will be interesting to watch, so stay tuned.

You can read more about the decision at this link.  http://www.chamberlitigation.com/noel-canning-v-national-labor-relations-board-nlrb

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