Wyatt Employment Law Report

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NLRB Attacks Employee Handbook Rules

By Edwin S. Hopson

In early June 2014, a National Labor Relations Board Administrative Law Judge (ALJ) in Professional Electrical Contractors of Connecticut, Case No. 34-CA-071532, ruled that a number of handbook provisions violated the National Labor Relations Act. The handbook applied to employees who largely worked in the field on customers’ premises.

The challenged handbook rules were:

  1. A rule prohibiting employees from disclosing the location and telephone number to outsiders of the customer to which the employee was assigned.
  2. A rule stating that no employee shall disclose customer information to outsiders, including other customers or third parties and members of one’s own family.
  3. A prohibition of boisterous or disruptive activity in the workplace.
  4. A rule against initiating or participating in distribution of chain letters, sending communications or posting information, on or off duty, or using personal computers in any manner that may adversely affect company business interests or reputation.
  5. A series of rules prohibiting employees from taking photographs or making recordings at the workplace without prior authorization by management.

The ALJ largely held for the NLRB’s General Counsel and issued an order requiring that the company cease and desist from:

(a) Maintaining a provision in its employee handbook that requires employees not to disclose the location of their customer assignment to outsiders.

(b) Maintaining a provision in its employee handbook that prohibits employees from engaging in “boisterous” activities in the workplace.

(c) Maintaining a provision in its employee handbook that prohibits employees from initiating or participating in the distribution of chain letters, sending communications or posting information, on or off duty, or using personal computers in any manner that may adversely affect company business interests or reputation.

(d) Maintaining a provision in its employee handbook that prohibits employees from taking photographs or making recordings at the workplace without the prior authorization by management.

The case likely will be appealed to the Board in Washington, D.C., and thereafter to a court of appeals.

This case is a good example of how closely the NLRB will scrutinize employee handbook provisions. This can be particularly problematic if the employer finds itself in the midst of a union organizing campaign.  Thus, if the employer wins the election, it may be set aside should there be handbook provisions in place that the NLRB finds objectionable.

For more information in the Louisville, KY, Lexington, KY or New Albany, IN areas, contact Ed Hopson.

For more information in the Memphis, TN, Nashville, TN or Jackson, MS areas, contact Odell Horton.

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NLRB and Socal Media

By Erin Frankrone*

It may be illegal to fire employees who complain about supervisors or working conditions on Facebook and other social media sites, as such complaints probably constitute protected concerted activity.  

On April 19, 2013, the NLRB decided Design Tech. Group, 359 NLRB No. 96 (2013), and found that employees’ complaints and discussions on Facebook were a continuation of direct complaints to the employer, and a discussion of the terms and conditions of employment.  Therefore, the Board ruled they were protected concerted activity for their mutual aid and protection under Section 7 of the Act.

The company had contended in defense that it had been entrapped by the employees.  However, companies are unlikely to prevail on an entrapment defense in these situations, even if the employees appear to desire their own termination.  The NLRB noted that employees’ selfish motives do not deprive them of their rights to engage in protected activities.  The key tension in this area is whether employees’ complaints/discussions through social media can fairly constitute the classic concerted activity given the global dissemination of their remarks.

*Erin Frankrone is a Summer Associate at Wyatt, Tarrant & Combs, LLP.

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NLRB Issues First Social Media Decision and Invalidates “Courtesy” Policy

By George J. Miller

On September 28, 2012, the National Labor Relations Board issued its first decision in one of the social media cases which have garnered so much attention in the last year and a half.  The case is Karl Knauz Motors, Inc., d/b/a Knauz BMW, 358 NLRB No. 164.  This was the case of a BMW salesman named Becker who was fired after posting photos and a critical message on his Facebook page about the dealership’s choice of inexpensive food (hot dogs, small bags of chips, cookies, and bottled water) for a sales event promoting a new car model to customers.  At a meeting before the event, Becker and other sales people expressed their disappointment about the choice of food and their concern that it would send the wrong message to their clients and negatively affect their commissions.  At the sales event, Becker took photos of the food.

During the same week as the sales event, an underage driver drove a vehicle off the lot of a dealership across the street and into a pond in front of the BMW dealership.  The BMW employees gathered to watch the commotion, and Becker took photos.  He posted these photos on his Facebook page along with the comment, “Oops.”  At the same time, he posted the photos of the sales event, with critical comments.  Before he posted the photos about the sales event, he told his co-workers what he planned to do. 

The dealership fired Becker, and he then filed an unfair labor practice charge at the NLRB.  The Acting General Counsel of the NLRB decided to issue a complaint against the dealership on the basis of evidence that (a) Becker was fired at least in part because of his posting about the sales event, and (b) this posting was protected by the law because it addressed terms of employment–the possible effect of the food choice on commissions–and Becker was voicing the sentiments of other salespeople and was continuing the course of activity that began at the group meeting before the sales event. 

At the trial, the dealership defended by arguing that the one and only reason it fired Becker was because of his Facebook posting about the car accident, a serious matter, not the posting about the sales event.  The judge agreed with the dealership on this point, and so did the NLRB on review.  They concluded that the posting about the accident was not protected, concerted activity, but rather that it was, “posted as a lark, without any discussion with any other employee [of the dealership] and had no connection to any of the employees’ terms and conditions of employment.”  In ruling that the dealership’s only motive in terminating Becker was the Facebook posting about the accident, the NLRB did not have to decide whether the posting about the sales event was protected activity.

However, the judge and the NLRB also found that the dealership’s “Courtesy” policy in its employee handbook violated the law because it would tend to chill employees in the exercise of their rights under the law.  The Courtesy policy said:

“(b) Courtesy: Courtesy is the responsibility of every employee.    Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees.  No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.”

A two member majority of the three NLRB members who presided over the case agreed with the judge and held that this policy violated the law because employees could reasonably understand its broad prohibition against “disrespectful” language and “language which injures the image or reputation of the Dealership” to prohibit employees from objecting to their working conditions–whether to co-workers, supervisors, managers, or third parties–and seeking to improve them.  Under the National Labor Relations Act, employees have the collective right to object to their working conditions.

In dissent, NLRB Member Hayes argued that the majority’s decision goes too far, because it, “invalidates any handbook policy that employees conceivably could construe to prohibit protected activity, regardless of whether they reasonably would do so.”  Member Hayes argued that the majority read the words “disrespectful” and “language which injures the image or reputation of the Dealership” in isolation and did not give the whole policy a reasonable reading, contrary to precedent.  He opined that, “employees and employers alike have a right to expect a civil workplace, promoted through policies like the one that my colleagues find unlawful.”  Read in this context, he believed the policy complies with the law.

In view of this new decision and the recent efforts of the Acting General Counsel to attack the policies of non-union employers, it would be wise for all non-union employers to review their policies for compliance with the National Labor Relations Act and amend or rescind them as necessary.

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NLRB’s Acting General Counsel Issues Second Report on Social Media Cases

By Edwin S. Hoposon

Late last month, the Acting General Counsel of the National Labor Relations Board, Lafe Solomon issued a second report describing social media cases reviewed by his office.  The Memorandum covered 14 cases, 7 of which involved questions about employer social media policies. Five of those social media policies were found to be unlawfully broad, one was lawful, and one was found to be lawful after it was revised by the company.

The remaining 7 cases involved the discharge of employees after they posted comments to a Facebook page. Several discharges were found to be unlawful because they flowed from unlawful policies. But in one case, the discharge was upheld despite an unlawful policy because the employee’s posting was not found to be work-related.

The Acting General Counsel’s report underscored two points made in his first compilation of cases issued August 18, 2011, namely:

 –Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.

–An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

 In one case, Solomon stated:

“The Employer’s rule prohibited “[m]aking disparaging comments about the company through any media, including online blogs, other electronic media or through the media.” We concluded that this rule was unlawful because it would reasonably be construed to restrict Section 7 activity, such as statements that the Employer is, for example, not treating employees fairly or paying them sufficiently. Further, the rule contained no limiting language that would clarify to employees that the rule does not restrict Section 7 rights.”

 In that case, the employee involved had posted a complaint about her employer on her Facebook page using expletives.  Some 10 co-workers were “friends” and at least one responded to the posting.  The employee was discharged over the posting.  The Acting General Counsel found the discharge unlawful based on the fact that the firing was based on an unlawfully overbroad non-disparagement rule and that the employee was engaged in protected concerted activity in making the posting.

In another case, the employer’s discharge of the charging party for her Facebook comments was found to be lawful since the employee had not been engaged in protected concerted activity. However, the social media policy and its no-solicitation rule were found to be unlawfully overbroad.

Solomon stated in his press release that he has asked all NLRB regional offices to forward cases which the regional directors believe to be meritorious social media cases to the NLRB’s Division of Advice in Washington D.C. for review.  In this way, Solomon stated, the NLRB can better track such cases and devise a consistent approach. According to Solomon, thus far some 75 cases have been forwarded to the Division of Advice.

The report emphasizes that it represents the Acting General Counsel’s interpretation of the National Labor Relations Act.  There are currently three cases involving social media questions pending before the Board, which should provide further guidance under the Act for such cases.

The full report can be found at: 

 Operations Management Memo

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NLRB General Counsel Issues Report On Significant Social Media Case Developments

By Leila G. O’Carra

A few weeks ago, the Acting General Counsel for the National Labor Relations Board (NLRB) issued a report presenting recent case developments relating to social media.  He wrote about the following cases in which the NLRB found that the employer had violated the NLRA:

●          A non-profit social services provider unlawfully discharged employees for posting on Facebook.  In preparation for a meeting with management, the employee posted a question asking whether her co-workers felt that they provided sufficient aid to the employer’s clients.  Although some of the responses contained sarcasm and swear words, the NLRB ruled that the Facebook conversation was protected concerted activity.

●          An ambulance service wrongfully discharged an employee for complaining about her supervisor on Facebook.  The employee posted negative comments after the supervisor illegally refused to allow the employee union representation in connection with a customer complaint about the employee’s work.  The employee’s Facebook comments were protected, despite the name-calling (i.e. “scumbag”) used in the post because the comments were provoked by the supervisor’s unlawful refusal to provide union representation. Continue reading