With the increasing prominence of social media, employers have been rightfully concerned about the impact of employees’ out-of-work statements on the work place—particularly when it comes to the reputation of the employer. In the last few years, the National Labor Relations Board has held that even offensive language can be protected concerted activity [See previous Orrick blog postings on this topic from September 25, 2012 and May 16, 2013]. However, apparently there is a limit: an administrative law judge held last week that the expletive-laden Facebook posts of two youth center employees crossed a line. Read More
As reported in prior blogs, the National Labor Relations Board (NLRB) has become increasingly active in attacking employer policies on the grounds that those policies chill employees’ rights to engage in concerted activity. In particular, the NLRB has been scrutinizing social media policies. Read More
The United States Supreme Court is now in session and three cases stand out on the docket that private employers will want to follow. While not the blockbusters heard during the Court’s last session, these cases will address important issues ranging from the proper interpretation of Sarbanes-Oxley Act’s whistleblower provision to the breadth of the President’s recess-appointment power to what constitutes “changing clothes” under the FLSA. Read More
Despite increasing rejection of the NLRB’s controversial D.R. Horton decision by almost all federal courts which have considered it, an NLRB administrative law judge recently felt there was no choice but to follow Board precedent and so applied and affirmed its holding. These cases illustrate the growing divide between the NLRB and courts over the D.R. Horton decision and the growing trend of federal courts refusing to uphold its enforcement. Read More
Providing yet another example of how online social networking can amount to protected conduct under the National Labor Relations Act, the NLRB ruled earlier this month in New York Party Shuttle, LLC and Fred Pflantzer, CN: 02-CA-073340 that a New York City tour guide’s Facebook postings constituted protected union organizing activities. The board held that New York Party Shuttle LLC unlawfully discharged Fred Pflantzer when it refused to give him new assignments after he posted Facebook messages criticizing the company’s employment practices. Read More
A recent D.C. Circuit Court of Appeals decision striking down several recess appointments to the National Labor Relations Board has cast doubt over one of the NLRB’s most controversial decisions from 2012.
In Noel Canning v. NLRB, F. 3d (D.C. Cir. Jan. 25, 2013), the D.C. Circuit held that President Obama lacked constitutional authority to use recess appointments to name three new members to the NLRB because the vacancies did not arise, and the appointments were not made, during a “Recess of the Senate,” which is defined as “the period between sessions that would end with the ensuing session of the Senate.” Slip op. at 18; 39-40. As a result, the court held that the NLRB lacked a quorum when it decided the underlying case, rendering its decision void ab initio.
The holding in Noel Canning raises questions about the viability of In re D.R. Horton, Inc., 357 NLRB 184 – 2012, one of the most widely discussed NLRB decisions of 2012. In D.R. Horton, the Board held that arbitration clauses that prohibit employees from pursuing class or collective actions violate employee rights under Section 7 of the National Labor Relations Act (“NLRA”) to engage in protected concerted activity. D.R. Horton’s appeal will be heard by the Fifth Circuit on February 4.
D.R. Horton was decided the day before President Obama made the recess appointments at issue in Noel Canning. However, Craig Becker, one of the three NLRB members who decided D.R. Horton, was the subject of an earlier recess appointment in 2010. D.R. Horton filed a letter with the Fifth Circuit on January 29, 2013, arguing that the holding in Noel Canning should be applied to Becker’s appointment and render the decision void. The Fifth Circuit is expected to address this issue together with D.R. Horton’s existing arguments during oral argument on February 4.
Employers in California have been watching closely to see how courts will apply the United States Supreme Court’s decision in AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011), which held that the Federal Arbitration Act (FAA) preempted state law concerning the enforceability of class action waiver provisions, in which a party waives his or her right to arbitrate claims on a class basis. Read More
In its first ruling on an employer’s social media policy, the National Labor Relations Board found that Costco Wholesale Corporation’s social media policy in its employee handbook violated the National Labor Relations Act. Among the policy provisions reviewed, the Board analyzed Costco’s policy prohibiting employees from posting electronically statements that damage the company or any person’s reputation.
In its September 7, 2012 opinion, the Board stated that the “appropriate inquiry” is whether the policy would “reasonably tend to chill employees in their exercise of their Section 7 rights[,]” which provides employees with the right to engage in concerted activity. While the Board acknowledged that Costco’s policy did not explicitly reference Section 7 activity, the Board did find that the policy’s broad prohibition on statements “clearly encompasses concerted communications protesting [Costco’s] treatment of its employees.” The Board specifically noted that there was nothing in Costco’s policy that even suggested the exclusion of protected communications. Accordingly, the Board concluded that Costco’s policy had a reasonable tendency to inhibit employees’ protected activity and thus violated the National Labor Relations Act.
Earlier this year, in D.R. Horton, Inc., 357 NLRB No. 184 (Jan. 6, 2012), the National Labor Relations Board (“Board” or “NLRB”) held that mandatory arbitration agreements requiring all employment disputes to be resolved through individual, bilateral arbitration violate the National Labor Relations Act (“NLRA”) because such agreements impermissibly restrict employees’ rights under Section 7 to engage in “concerted action for mutual aid or protection.” Although some courts have already rejected D.R. Horton (see e.g., opinion from S.D.N.Y., opinion from M.D. Fla. and opinion from California State Court) two recent pronouncements call into question additional, commonly used and accepted employment practices after finding they also had a “chilling effect” on employees’ right to engage in protected, concerted activity. Even though it remains to be seen whether these decisions will survive full Board and/or appellate court review, their rationale applies to union and non-union workplaces, and both decisions are worth reviewing now for the impact they may have on employer practices in these and other areas. Read More
A California Court of Appeal recently required a plaintiff to forego class and representative action claims in Nelsen v. Legacy Partners Residential, Inc., No. A132927 (Cal. App. July 18, 2012) finding that she failed to show the employer’s arbitration agreement was unconscionable or that compelling individual arbitration would violate state or federal law or public policy. Knocking down the attempt to keep class and representative claims alive in either a judicial or arbitration proceeding, the First Appellate District held that all of the plaintiff’s California Labor Code claims, as well her claim for injunctive relief, had to be arbitrated on an individual basis. Read More