Tag Archives: NLRB

NLRB Clicks “Like” Button on Two Employer Social Media Policies, Rejects Many Others

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Lafe Solomon, Acting General Counsel of the National Labor Relations Board, issued a new report yesterday describing various social media-related cases that the Board has handled during the preceding year. The report, which is 35 pages long, is interesting reading. But the most interesting thing is that nearly all of the employer social media policies mentioned were found to be unlawful to some extent. Specifically, the NLRB found all of the following policies and policy language to be violations of Section 8(a)(1):

  • A requirement that employees “avoid identifying themselves as [company] employees, unless there was a legitimate business need to do so,” and to only discuss terms and conditions of employment “in an appropriate manner.”
  • A ban on “unprofessional communication that could negatively impact the [company's] reputation or interfere with [its] mission.”
  • A ban on “unprofessional/inappropriate communication regarding members of the [company's] community.”
  • A ban on “disclosing or communicating information of a confidential, sensitive, or non-public information concerning the company on or through company property to anyone outside the company without prior approval of senior management or the law department.”
  • A ban on “use of the company’s name or service marks outside the course of business without prior approval of the law department.”
  • A ban on “publishing any representation about the company without prior approval by senior management and the law department.”
  • A requirement that employees obtain prior management approval before they could “identify themselves as the Employer’s employees” (and then they had to “expressly state that their comments are their personal opinions and do not necessarily reflect the Employer’s opinions”).
  • A requirement that all “social networking site communications be made in an honest, professional, and appropriate manner, without defamatory or inflammatory comments regarding the employer and its subsidiaries, and their shareholders, officers, employees, customers, suppliers, contractors, and patients.”
  • A ban on “discriminatory, defamatory, or harassing web entries about specific employees, work environment, or work-related issues on social media sites.

Common problems with the above requirements and prohibitions, according to the Board, is that they either chill, or burden, or flat out prohibit the exercise of employees’ Section 7 rights to engage in collective discussion on Facebook (and elsewhere) about workplace-related issues.  Several of the policy provisions (such as the bans on defamation and disclosing “confidential” information, or the requirement that things be discussed in an “appropriate” manner) failed in the Board’s eyes because no examples or context were offered to the employee, and an employee reading the provision would understand his or her Section 7 rights being limited. (Or at least, so sayeth the Board.)

Of all of the policies that the Board discussed in the memo, it pushed the “Like” button on just two:

  • An employer’s prohibition on any “post or display comments about coworkers or supervisors or the Employer that [is] vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.” (This prohibition was actually an updated version of the last bullet item listed above – the Board found this employer had corrected the Board’s concerns about the word “defamatory”.)
  • An employer’s policy that banned “using or disclosing confidential and/or proprietary information, including personal health information about customers or patients, and it also prohibited employees from discussing in any form of social media “embargoed information,” such as launch and release dates and pending reorganizations, and that prohibited employees from referring to the company “by name,” “publishing any promotional content,” and requiring employees employees, “while engaging in social networking activities for personal purposes, [to] indicate that their views were their own and did not reflect those of their employer.” (The latter provisions the Board found OK because they were found only in a section of the policy called “Promotional Content,” and that as a result, “employees could not reasonably construe the rule to apply to their communications regarding working conditions, as they would not consider those communications to promote or advertise on behalf of the Employer.”)

And for those employers who have a boilerplate “savings clause” in their social media policies (something like: “this policy should not be interpreted or applied so as to interfere with employee rights to self-organize, form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities“), nice try. The NLRB held that this exact savings clause did not salvage the company’s otherwise-unlawful policy, essentially because the Board concluded that the average employee reading the savings clause would have no idea what it meant (“an employee could not reasonably be expected to know that this [savings clause] language encompasses discussions the Employer deems
‘inappropriate’“).

Much of the above guidance is not new — though I do admit that it is nice for once to see examples (if only just a few) of policies that the Board actually finds to pass muster under Section 8(a)(1).

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3rd Circuit Agrees with NLRB, Group Home “Assistant Managers” Were Not Supervisors

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The Third Circuit has enforced an NLRB order which had concluded that assistant managers working in a group home for juvenile delinquents at-risk youth were not “supervisors,” and thus were properly part of a certified bargaining unit.

Generally, in the private sector, if you are a “supervisor,” you can’t be in a union. Ever.

The group home had argued that these assistant managers counted as “supervisors” because they “responsibly direct others” and gave out work assignments.

The Third Circuit agreed with the Board that there was little or no evidence to support either contention.

First, there were apparently “numerous examples of where assistant managers were not disciplined for the failure of resident assistants to follow their directions,” and none of the evaluation criteria for these assistant managers included any assessment of their supervisory skills.

Second, few of the assistant managers actually gave out any real work assignments, and the ones who did hand their hands tied tightly by internal company rules, government regulations, and by their own superiors, who had to approve virtually everything they did:

As to scheduling, there is sufficient evidence in the record that only some assistant managers had the authority to recommend an assistant’s schedule, which was later reviewed and approved by the program manager, and they had no authority to require the assistant to follow certain schedules. [Citation]. Further, the schedules are constrained by significant Government and Mars Home regulations, which cuts against finding that the assistant managers acted with independent judgment.

Part of the assistant manager’s duties is to make sure that the resident halls are adequately staffed at all times. If assistants are absent, an assistant manager may either let the unit run short-staffed, assuming it still has the required staffto-resident ratio, pull an assistant from another unit, or find a volunteer. When seeking volunteers, it is Mars Home’s informal policy that the assistant manager call the most junior assistant first and that no employee may work for more than 16 consecutive hours. A program manager must approve any overtime.

Also, there is sufficient evidence in the record that demonstrates the assistant managers do not have the authority to assign transportation duty to the assistants. In fact, one assistant manager testified that when a resident needs to be transported he simply asks for volunteers and bases any staffing decisions on the gender of the patient.

Finally, the Board’s interpretation that daily work schedules, such as assigning an assistant to monitor a single resident or to respond to a crisis constituted evidence of direction, not assignment, is not unreasonable. The Board has interpreted assignment to mean the allocation of significant overall responsibilities to an employee, not ad hoc duties. [Citation]. Here, it is plain that the assistant managers are giving only ad hoc duties, which is not evidence of the authority to assign under the Act.

The case is Mars Home for Youth v. Penna. Social Services Union Local 668.

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NLRB: Employers May Not Prohibit Employees from Pursuing Class or Collective Claims

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On Friday, January 6, the NLRB issued its decision in D.R. Horton, holding that an employer who requires its employees to sign contracts which have the effect of prohibiting class or collective litigation against their employer violates Section 8(a)(1) of the National Labor Relations Act.

Here’s the NLRB’s own summary of its holding:

In this case, we consider whether an employer violatesSection 8(a)(1) of the National Labor Relations Act when it requires employees covered by the Act, as a conditionof their employment, to sign an agreement that precludes them from filing joint, class, or collective claims addressing their wages, hours or other working conditions against the employer in any forum, arbitral or judicial. For the reasons stated below, we find that such anagreement unlawfully restricts employees’ Section 7 right to engage in concerted action for mutual aid or protection, notwithstanding the Federal Arbitration Act (FAA), which generally makes employment-related arbitration agreements judicially enforceable.

D.R. Horton had required its employees to sign a contract as a condition of their employment. That contract required the employee to submit any claim relating to their employment to mandatory arbitration. Included in the contract were the following provisions:

  • The arbitrator “may hear only Employee’s individual claims”
  • The arbitrator “will not have the authority to consolidate the claims of other employees”
  • The arbitrator “does not have authority to fashion a proceeding as a class or collective action or to award relief to a group or class of employees in one arbitration proceeding”

The NLRB held that the mere inclusion of these clauses in the contract was a violation of Section 8(a)(1) of the NLRB, which bans employers from (among other things) interfering with employees’ rights to “mutual aid or protection.”  The NLRB in D.R. Horton held that “an individualwho files a class or collective action regardingwages, hours or working conditions, whether in court orbefore an arbitrator, seeks to initiate or induce group actionand is engaged in conduct protected by Section 7″ and that this conduct was “central to the purpose” of the NLRA.

The Board did not hold that all employment arbitration agreements violate Section 8(a)(1), only those that purport to ban what the Board repeatedly characterized as the employee’s “substantive” right to pursue class or collective claims in some forum (whether a judicial forum or an arbitral one):

[E]mployers may not compel employees to waive their NLRA right to collectively pursue litigation of employment claims in all forums, arbitral and judicial. So long as the employer leaves open a judicial forum for class and collective claims, employees’ NLRA rights are preserved without requiring the availability of classwide arbitration. Employers remain free to insist that arbitral proceedings be conducted on an individual basis.

Given the NLRB’s presumption that the ability to pursue a class or collective claim is an actual substantive right (as opposed to a mere procedural mechanism to address and resolve other alleged infringement of rights), as well as the rather obvious tension between D.R. Horton and the Federal Arbitration Act (a statute that, by its terms, requires that arbitration agreements be enforced according to their terms like any other contract), as well as a myriad of other issues raised by the decision, D.R. Hortonshould make for several years of interesting litigation in the courts.

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