NLRB

The NLRB Finds That Social Media Policy Violates The National Labor Relations Act

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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.

Recent NLRB Decisions Challenge At-Will Disclaimers and May Impact HR Investigations

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Chairs Around a Table

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 →

California Court of Appeal Enforces Arbitration

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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 →

CA Court Holds Employment Arbitration Agreement Waiving Class and Representative Actions Enforceable

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Gavel and Hundred-Dollar Bill

In Iskanian v. CLS Transportation Los Angeles, LLC, (Cal. Ct. App. June 4, 2012), the California Court of Appeal for the Second Appellate District affirmed a decision to compel individual arbitration of wage-and-hour claims pursuant to an employment agreement that contained class and representative action waivers, holding that the U.S. Supreme Court’s decision in AT&T Mobility LLC v. Concepcion was controlling. READ MORE →

New Decision Rejects D.R. Horton Reasoning

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A new ruling from the Northern District of California, Morvant v. P.F. Chang’s Bistro, Inc. (May 7, 2012), confirms the enforceability of class action waivers despite contrary California law and the National Labor Relations Board’s opinion in D.R. Horton. READ MORE →

D.C. Circuit Enjoins NLRB Posting Requirement

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Gavel and Hundred-Dollar Bill

In a key update regarding an issue that will affect all employers, on April 17, 2012 the U.S. Court of Appeals for the District of Columbia Circuit issued an injunction requiring the National Labor Relations Board (“NLRB”) to preserve the “status quo” in its ongoing push to require employers to post its controversial “Employee Rights Notice” informing employees of their rights to organize unions.  As a result of this order, the NLRB is prohibited from enforcing its new requirement that employers post the notice by April 30, 2012.  The NLRB has appropriately acknowledged the Court’s injunction, stating on its website that “The DC Circuit Court of Appeals has temporarily enjoined the NLRB’s rule requiring the posting of employee rights under the National Labor Relations Act” and that “[t]he rule, which had been scheduled to take effect on April 30, 2012, will not take effect until the legal issues are resolved.  There is no new deadline for the posting requirement at this time.”

The D.C. Circuit’s order is an important and welcome “time out” given the uncertainty of the “legal issues” surrounding the NLRB’s posting requirement.  Just last week, the U.S. District Court for the District of South Carolina granted summary judgment to the U.S. Chamber of Commerce in its bid to invalidate the posting requirement, holding that the posting requirement was in violation of the Administrative Procedures Act and that the NLRB’s role is to be “reactive” rather than “proactive.”  But earlier this year, the U.S. District Court for the District of Columbia upheld the NLRB posting requirement against a challenge by the National Association of Manufacturers.  That case is presently on appeal, the outcome of which will determine the next development in this saga.

For now, at least, employers should breathe a sigh of relief and know that they do not need to post the NLRB’s “Employee Rights Notice” until its legality is determined by the courts.

Stay tuned for further developments.