800 Corporate Drive, Ste 600 Ft. Lauderdale, FL 33334 | 888.335.9545 Toll-Free | alphastaff.com2013 Webinar SeriesRECENT N...
Simplifying business. Benefiting people.AlphaStaff Welcomes Our Featured Partner!2Donald C. Works, IIIAttorney At LawManag...
Simplifying business. Benefiting people.THE NATIONAL LABOR RELATIONS BOARD• WHAT IS IT?• WHAT DOES IT DO?3
Section 7- NLRAProtected Concerted Activity
Simplifying business. Benefiting people.Section 7- Protected Concerted ActivityThe National Labor Relations Act controlsth...
Simplifying business. Benefiting people.Section 7- Protected Concerted Activity6“Employees shall have the right to self-or...
Simplifying business. Benefiting people.Section 7- Protected Concerted Activity• NLRA protects concerted activity by emplo...
PROTECTED CONCERTED ACTIVITY• CONCERTED• PROTECTED• TWO PART TEST
Simplifying business. Benefiting people.What is Concerted?9BOSS
Simplifying business. Benefiting people.What is Concerted?10YOU GO TELLHIM!BOSS
Simplifying business. Benefiting people.What is Protected?Examples• Dangerous working conditions• Lawsuits related to work...
Simplifying business. Benefiting people.What is Not Protected?Examples• Intermittent Strikes and work slowdowns• Comments ...
Simplifying business. Benefiting people.Knowing the Context Is Critical• Conduct which appears inappropriate and would see...
Simplifying business. Benefiting people.What Violates the National LaborRelations Act?• A work rule that reasonably tends ...
EXAMPLES OF LAWFUL ANDUNLAWFUL EMPLOYER RULES ANDPOLICES15
Simplifying business. Benefiting people.What Violates the National Labor RelationsAct?Among the policies being scrutinized...
Simplifying business. Benefiting people.What Violates the National LaborRelations Act?Among the polices being scrutinized ...
Simplifying business. Benefiting people.Confidentiality Rules• “Employees may not discuss wages with co-workers.”UNLAWFUL•...
Simplifying business. Benefiting people.Confidentiality Rules• During the investigation of a workplace issue a third party...
Simplifying business. Benefiting people.Confidentiality Rules• Company employees must refrain from discussing privatematte...
Simplifying business. Benefiting people.Anti-Fraternization Rules• “Employees are prohibited from “fraternizing on duty or...
Simplifying business. Benefiting people.Rules Regarding Conduct• Making false, or profane statements concerning the Compan...
Simplifying business. Benefiting people.Rules Regarding Conduct• Courtesy is the responsibility of every employee. Everyon...
Simplifying business. Benefiting people.Rules Regarding Conduct• Employees are not allowed on company property when not on...
Simplifying business. Benefiting people.Rules Regarding Conduct• Participating in any disruption or interference with work...
Simplifying business. Benefiting people.Apparel and Personal Appearance Rules• Employees may not wear unauthorized pins an...
Simplifying business. Benefiting people.Disparagement and Disloyalty• Employees are prohibited from making disparaging com...
Simplifying business. Benefiting people.Non-Harassment and Civility• “Employees are expected to conduct themselvesprofessi...
Simplifying business. Benefiting people.Non-Harassment and Civility• “All employees are responsible for communicating with...
Simplifying business. Benefiting people.Solicitation and Distribution• “Employees are prohibited from soliciting at any ti...
Simplifying business. Benefiting people.Social Media & Concerted Activity• Employees are talking about theiremployers onli...
Simplifying business. Benefiting people.Social Media & Concerted ActivityNLRB extends concertedactivity to social media;Bo...
Simplifying business. Benefiting people.Two Issues Arise From These Cases:• DisciplineWhen may an employer discipline an e...
Simplifying business. Benefiting people.Social Media and Concerted Activity• “Unless you are specifically authorized to do...
Simplifying business. Benefiting people.Social Media and Concerted Activity• “Employees should be aware that statements po...
Summary36
Simplifying business. Benefiting people.Summary• Employees have broad latitude in what they can say about workand supervis...
Simplifying business. Benefiting people.Reports of the General Counsel on SocialMedia Cases• http://www.nlrb.gov/news-outr...
Simplifying business. Benefiting people.Employment At-Will Statements• You may resign at any time with or without notice. ...
Simplifying business. Benefiting people.Potential Consequences In This Area• Reinstatement and back pay with interest if a...
5 Ways to Avoid Violations of the Labor Act41
Simplifying business. Benefiting people.5 Ways to Avoid Violations of the Labor Act1. Review and revise your current polic...
Simplifying business. Benefiting people.5 Ways to Avoid Violations of the Labor Act3. Train supervisors, managers and othe...
Simplifying business. Benefiting people.Recommendation
Simplifying business. Benefiting people.Recommendation• Would a reasonable employee construe your rule or policy aslimitin...
Simplifying business. Benefiting people.RecommendationDisclaimer or Savings Clause in Employer’s Social Media Policyapprov...
Wrap-Up47
Simplifying business. Benefiting people.ConclusionQuestions?Thoughts?Napping?48
Simplifying business. Benefiting people.Contact Us !• . Copies of the presentationhrsc@alphstaff.com888-335-9545 (Option 8...
Upcoming AlphaStaff WebinarPlease mark your calendars !!!Date: Thursday June 20, 2013Topic: Employee Assistance ProgramOve...
Simplifying business. Benefiting people.Thank you for your participation!51
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Recent NLRB Rulings and Their Impact on Non-Union Employers

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Surprisingly, the National Labor Relations Board has begun extending its tentacles into every facet of both union and non-union employer workplaces. Did you know that your “at-will” policies may be at risk? And, you can no longer require confidentiality when conducting internal investigations! These shocking developments and what you can do to avoid issues with the Board will be addressed.

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Recent NLRB Rulings and Their Impact on Non-Union Employers

  1. 1. 800 Corporate Drive, Ste 600 Ft. Lauderdale, FL 33334 | 888.335.9545 Toll-Free | alphastaff.com2013 Webinar SeriesRECENT NLRB RULINGS ANDTHEIR IMPACT ONNON-UNION EMPLOYERSMay 31, 2013Presented by:
  2. 2. Simplifying business. Benefiting people.AlphaStaff Welcomes Our Featured Partner!2Donald C. Works, IIIAttorney At LawManaging Partner, Orlando Office
  3. 3. Simplifying business. Benefiting people.THE NATIONAL LABOR RELATIONS BOARD• WHAT IS IT?• WHAT DOES IT DO?3
  4. 4. Section 7- NLRAProtected Concerted Activity
  5. 5. Simplifying business. Benefiting people.Section 7- Protected Concerted ActivityThe National Labor Relations Act controlsthe rights of union and non-unionemployers that seek to regulate theconduct of non-supervisory employees5
  6. 6. Simplifying business. Benefiting people.Section 7- Protected Concerted Activity6“Employees shall have the right to self-organization, toform, join, or assist labor organizations, to bargaincollectively through representatives of their ownchoosing, and to engage in other concerted activities forthe purpose of collective bargaining or other mutual aidor protection.” (emphasis added)
  7. 7. Simplifying business. Benefiting people.Section 7- Protected Concerted Activity• NLRA protects concerted activity by employees.Applies equally to both unionized and union-free workplaces7
  8. 8. PROTECTED CONCERTED ACTIVITY• CONCERTED• PROTECTED• TWO PART TEST
  9. 9. Simplifying business. Benefiting people.What is Concerted?9BOSS
  10. 10. Simplifying business. Benefiting people.What is Concerted?10YOU GO TELLHIM!BOSS
  11. 11. Simplifying business. Benefiting people.What is Protected?Examples• Dangerous working conditions• Lawsuits related to working conditions• Speaking with the news media about your employer• Political advocacy with nexus to the job• Jointly complaining with others about workingconditions11
  12. 12. Simplifying business. Benefiting people.What is Not Protected?Examples• Intermittent Strikes and work slowdowns• Comments to Third Parties Critical of an Employer that Make No Referenceto a Labor Controversy• Concerns about the “happiness” of customers or quality of product• Social issues that have no more than a tangential relationship to work.12
  13. 13. Simplifying business. Benefiting people.Knowing the Context Is Critical• Conduct which appears inappropriate and would seem a properbasis for discipline may, in fact, be protected.• Employees are permitted some leeway for impulsive behaviorwhen engaging in protected activity.• Protections can extend to individual employees, e.g., when anemployee speaks individually to his or her employer on his orher own behalf and on behalf of one or more co-workers aboutimproving working conditions as a prelude to bringing somekind of group action in opposition to working conditions ordirected at working conditions.13
  14. 14. Simplifying business. Benefiting people.What Violates the National LaborRelations Act?• A work rule that reasonably tends to chill employees fromexercising their right to engage in protected concerted activityeven if not enforced.• Application of rule to restrict the exercise of Section 7 rights;e.g. promulgation of work rule in response to union activity• Retaliation for discussing or complaining about terms andconditions of employment14
  15. 15. EXAMPLES OF LAWFUL ANDUNLAWFUL EMPLOYER RULES ANDPOLICES15
  16. 16. Simplifying business. Benefiting people.What Violates the National Labor RelationsAct?Among the policies being scrutinized by the Labor Board are:• Confidentiality• Fraternization• Statements of conduct• Apparel and appearance• Off duty access16
  17. 17. Simplifying business. Benefiting people.What Violates the National LaborRelations Act?Among the polices being scrutinized by the Labor Board are:• Disloyalty• Civility• Media contact• Social media• Employment-at-will17
  18. 18. Simplifying business. Benefiting people.Confidentiality Rules• “Employees may not discuss wages with co-workers.”UNLAWFUL• “Office business is not a matter of discussion with spouses,families or friends.”UNLAWFUL• “Employees may not discuss confidential proprietaryinformation with competitors.”LAWFUL18
  19. 19. Simplifying business. Benefiting people.Confidentiality Rules• During the investigation of a workplace issue a third partyinvestigator asked employees “not to discuss the investigationwith co-workers.”UNLAWFULFour Exceptions:• Protect a witness• Prevent fabrication of testimony• Prevent a cover-up• Prevent destruction of evidence19
  20. 20. Simplifying business. Benefiting people.Confidentiality Rules• Company employees must refrain from discussing privatematters involving other employees such as sick leave or FMLAleave.UNLAWFUL20
  21. 21. Simplifying business. Benefiting people.Anti-Fraternization Rules• “Employees are prohibited from “fraternizing on duty or offduty, dating or becoming overly friendly with a client’semployees or with the co-employees.”UNLAWFUL21
  22. 22. Simplifying business. Benefiting people.Rules Regarding Conduct• Making false, or profane statements concerning the Companyor any of its employees is prohibited.UNLAWFUL• Using abusive or threatening language to anyone on Companypremises is prohibited.LAWFUL22
  23. 23. Simplifying business. Benefiting people.Rules Regarding Conduct• Courtesy is the responsibility of every employee. Everyone isexpected to be courteous, polite and friendly to our customers,vendors and fellow employees. No one should be disrespectfulor use profanity.UNLAWFUL23
  24. 24. Simplifying business. Benefiting people.Rules Regarding Conduct• Employees are not allowed on company property when not onduty without approval of their manager.UNLAWFUL24
  25. 25. Simplifying business. Benefiting people.Rules Regarding Conduct• Participating in any disruption or interference with work isgrounds for discharge.UNLAWFUL25
  26. 26. Simplifying business. Benefiting people.Apparel and Personal Appearance Rules• Employees may not wear unauthorized pins and/or decals.UNLAWFUL• Personal bulletin board postings need the approval of theDirector of Human RecoursesUNLAWFUL26
  27. 27. Simplifying business. Benefiting people.Disparagement and Disloyalty• Employees are prohibited from making disparaging commentsand/or remarks about the Company, its officers and its Boardmembers in the media, including through online blogs.UNLAWFUL27
  28. 28. Simplifying business. Benefiting people.Non-Harassment and Civility• “Employees are expected to conduct themselvesprofessionally at all times and avoid inappropriate or offensiveremarks, threatening or uncivil behaviors toward otheremployees or any actions that might be viewed asharassment.”UNLAWFUL• Employees are encouraged to resolve concerns about work byspeaking with co-workers, supervisors and managers beforebringing their issues outside the company.UNLAWFUL28
  29. 29. Simplifying business. Benefiting people.Non-Harassment and Civility• “All employees are responsible for communicating withappropriate business decorum whether by means of e-mail, theinternet, hard copy, in conversation, or using other technologyor electronic communications.”LAWFUL29
  30. 30. Simplifying business. Benefiting people.Solicitation and Distribution• “Employees are prohibited from soliciting at any time wheneither they or those they are soliciting are working. Solicitationis permitted during free time in work areas but distribution ofliterature is not.”LAWFUL30
  31. 31. Simplifying business. Benefiting people.Social Media & Concerted Activity• Employees are talking about theiremployers online – like it or not– Including, for example, social media sites,blogs and text messages– 47% of online adults use social networkingsites31
  32. 32. Simplifying business. Benefiting people.Social Media & Concerted ActivityNLRB extends concertedactivity to social media;Board reviewing well over 100cases involving Twitter,Facebook, YouTube and otherforms of social media andelectronic communication32Fired Because of Facebook®: Social Media Policies and theNLRB
  33. 33. Simplifying business. Benefiting people.Two Issues Arise From These Cases:• DisciplineWhen may an employer discipline an employee based on the employee’sonline activities?• PoliciesDo the employer’s social medial policies prohibit the kinds of activitiesprotected by federal labor law?33
  34. 34. Simplifying business. Benefiting people.Social Media and Concerted Activity• “Unless you are specifically authorized to do so, you may notparticipate in social media use with Company resources and/oron Company time.”UNLAWFUL34
  35. 35. Simplifying business. Benefiting people.Social Media and Concerted Activity• “Employees should be aware that statements postedelectronically that damage the Company, defame any individualor damage any person’s reputation may be subject to discipline,up to and including termination of employment.”UNLAWFUL35
  36. 36. Summary36
  37. 37. Simplifying business. Benefiting people.Summary• Employees have broad latitude in what they can say about workand supervisors in online postings• “Time outside working hours, whether before or after work, or duringluncheon or rest periods, is an employee’s time to use as he wisheswithout reasonable restraint….” U.S. Supreme Court• But there are limits – flagrant, violent, or extreme remarks• Still, one has to wonder what the limits are!!??!37
  38. 38. Simplifying business. Benefiting people.Reports of the General Counsel on SocialMedia Cases• http://www.nlrb.gov/news-outreach/news-releases/acting-general-counsel-releases-report-employer-social-media-policies(May 30, 2012)• http://www.nlrb.gov/news-outreach/news-releases/acting-general-counsel-issues-second-social-media-report (January 25,2012)• http://www.nlrb.gov/news-outreach/news-releases/acting-general-counsel-releases-report-social-media-cases (August 18,2011)38
  39. 39. Simplifying business. Benefiting people.Employment At-Will Statements• You may resign at any time with or without notice. We mayterminate your employment at any time with or withoutreasons. This at will employment relationship cannot beamended, modified or altered in any way except in writing bythe Vice President of Human Resources or another companyexecutiveLAWFUL39
  40. 40. Simplifying business. Benefiting people.Potential Consequences In This Area• Reinstatement and back pay with interest if an Employee isterminated for a policy violation• Having an NLRB Election your company wins set aside• An NLRB order to rescind the applicable policy• Posting a notice (physically and perhaps electronically) statingthat your company is rescinding your policy and will not violatethe NLRA again• Possible debarment if your company is a federal contractor40
  41. 41. 5 Ways to Avoid Violations of the Labor Act41
  42. 42. Simplifying business. Benefiting people.5 Ways to Avoid Violations of the Labor Act1. Review and revise your current policies and handbookprovisions (and ones you do not enforce) to make themcompliant;2. Do not discipline employees without considering whether theirconduct constitutes protected concerted activity42
  43. 43. Simplifying business. Benefiting people.5 Ways to Avoid Violations of the Labor Act3. Train supervisors, managers and other decision makers on theissue of protected concerted activity4. Add lawful policies and handbook provisions to help manageemployee conduct5. Adopt a lawful disclaimer that specifically addresses protectedconcerted activity43
  44. 44. Simplifying business. Benefiting people.Recommendation
  45. 45. Simplifying business. Benefiting people.Recommendation• Would a reasonable employee construe your rule or policy aslimiting his/her ability to engage lawfully in protectedconcerted activity?• Context is important to any analysis of whether section 7rights are violated• Generally avoid using words like “negative” or “disparaging.”Use words like “maliciously false” and use examples wheneverpossible• Verbal statements and discipline without a written policy canalso be a violation45
  46. 46. Simplifying business. Benefiting people.RecommendationDisclaimer or Savings Clause in Employer’s Social Media Policyapproved by the Advice Division of the NLRB in 2012• Nothing in our company’s social media policy is designed tointerfere with, restrain, or prevent employee communicationsregarding wages, hours, or other terms and conditions ofemployment. Employees have the right to engage in or refrainfrom such activities.46
  47. 47. Wrap-Up47
  48. 48. Simplifying business. Benefiting people.ConclusionQuestions?Thoughts?Napping?48
  49. 49. Simplifying business. Benefiting people.Contact Us !• . Copies of the presentationhrsc@alphstaff.com888-335-9545 (Option 8)Donald C. Works, IIIAttorney At LawManaging Partner, Orlando Office390 North Orange Avenue, Ste. 1285Orlando, Florida 32801(407) 246-8433worksd@jacksonlewis.com49
  50. 50. Upcoming AlphaStaff WebinarPlease mark your calendars !!!Date: Thursday June 20, 2013Topic: Employee Assistance ProgramOverview and Supervisory Awareness50
  51. 51. Simplifying business. Benefiting people.Thank you for your participation!51

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