Employment Law Matters : Employment Lawyer & Attorney : Ogletree Deakins Law Firm : Labor Law, Human Resources

As most employers now are aware, on August 25, 2011, the National Labor Relations Board (NLRB) announced its final rule related to the Notification of Employee Rights under the National Labor Relations Act (NLRA). Under that rule, private-sector employers whose workplaces fall under NLRA jurisdiction will be required to post a notice of employee rights regarding unionization. The final rule requires employers to post and maintain the NLRB notice in conspicuous places, and to take “reasonable steps” to ensure that the notices are not altered, defaced, or covered by any other material, or otherwise rendered unreadable.

The proposed rule has been pending since December of 2010, and was to have taken effect on November 14, 2011, at which time employers would have been required to post written notices consistent with the rule. However, in October 2011, the NLRB announced its decision to postpone the implementation date for the notice until January 31, 2012. Since that time, the legal challenges to the rule having continued. The federal judge hearing arguments on the matter in Washington, D.C. last month told the board attorneys that either the effective date would have to be further extended, or she would enjoin the NLRB from implementing it, as she needed more time to consider the briefs and oral arguments presented by both sides in the case.

On December 23, 2011, the NLRB agreed to postpone the effective date of the notice-posting to April 30, 2012. The Board stated that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule. This firm is actively involved in the issues, and is representing the U.S. Chamber of Commerce and the South Carolina Chamber of Commerce in a parallel action challenging the rule. In October 2011, Cheryl Stanton, a shareholder in Ogletree Deakins’ Morristown, New Jersey office stated that the Board’s initial postponement of implementation would “permit a measured and thorough judicial review of whether the Board exceeded its authority in this rulemaking process.”

Employers who fail to post the notice after the new deadline (April 30) may be subject to sanctions for an unfair labor practice under the NLRA and, in any event in which notice has not been posted, the Board may extend the six-month statute of limitations for filing a charge involving other unfair labor practice (ULP) allegations against the employer. This means that an employer’s failure to post the required notice may extend the time within which employees may file ULP charges against that employer. Further, if an employer knowingly and willfully fails to post the notice, the failure also may be considered evidence of unlawful motive in any unfair labor practice case involving other alleged violations of the NLRA, meaning that the failure to post could inadvertently provide adverse evidence in an unrelated ULP matter.

Proposed notice language can be found on the NLRB’s website, along with an information sheet that summarizes the provisions of the 194 page rule, and a link to the preamble that summarizes the provisions of the final rule. Employers should also know that along with the obligation to post the rule will come the right to post a notice to employees of their right to choose not to unionize – however, wording of such a notice should be discussed and cleared with legal counsel prior to posting it.
 

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On August 25, 2011, the National Labor Relations Board (NLRB) issued a press release in which it announced its final rule related to the Notification of Employee Rights under the National Labor Relations Act (NLRA).  Private-sector employers (including labor organizations) whose workplaces fall under the jurisdiction of the NLRA will be required to post a notice of employee rights under that Act. In addition, employers who customarily post notices to employees regarding personnel rules or policies on an internet or intranet site will be required to post the Board’s notice at those sites. The proposed rule has been pending since December of last year, and will take effect on November 14, 2011, at which time the required notices must be posted.

The final rule requires employers to post and maintain the NLRB notice in conspicuous places, and to take “reasonable steps” to ensure that the notices are not altered, defaced, or covered by any other material, or otherwise rendered unreadable. Copies of acceptable notice will be available from the NLRB’s regional offices, but also be downloaded from the NLRB website. Under the final rule, employers have the right to post their own notice as well. While the final rule addresses the issue of whether employers may post their own notices informing employees of the company's position, the fact that proposed Notice language has been suggested by the NLRB is a likely hint that employer-drafted notices should include some or all of the proposed language.

The final rule also specifically addresses the issue of multi-national workforces in the US, and provides that where 20% or more of a workforce “is not proficient in English and speaks a language other than English,” the employer must provide notice in the language that such employees speak. The rule goes further to require that if an employer's workforce “includes two or more groups constituting at least 20 percent of the workforce who speak different languages, the employer must provide the notice in each such language." The NLRB has offered to provide translations of the notice.

The final rule lists a number of exemptions from the notice posting requirement including, for example, state or political subdivisions. In addition, the final rule states that federal contractors may comply with the provisions of the NLRB's posting requirement by posting the notices to employees already required under the DOL’s notice posting rule, and will not have to post a second notice.

Sanctions will be imposed against employers who fail to comply with the posting requirements after November 14, 2011. Primarily, an employer’s failure to post the notice may be treated as an unfair labor practice under the NLRA. However, the rule also states that the unfair labor practice case typically will be closed without further action if an employer was unaware of the rule and complies when requested. However, in any event in which notice has not been posted, the Board may extend the six-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer. Further, if an employer knowingly and willfully fails to post the notice, the failure also may be considered evidence of unlawful motive in any unfair labor practice case involving other alleged violations of the NLRA.

Proposed notice language can be found on the NLRB’s website, along with an information sheet that summarizes the provisions of the 194 page rule.
 

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The National Labor Relations Board (NLRB) has issued another complaint (and accompanying press release) alleging unlawful termination of an employee for posting photos and comments on Facebook.  The complaint, which is similar to other complaints filed by the NLRB in the past months, alleges that a Chicago area BMW dealership illegally fired an employee after that individual posted information critical of the dealership. In case you’ve missed the ever-escalating activity on this issue, here’s a summary:

• Earlier this year, in a highly publicized matter, the National Labor Relations Board (NLRB) pursued an employer in Connecticut after that company fired an individual for posting a negative comment about her supervisor on her own Facebook page, using her home computer to do so. That case ultimately was settled, and no administrative or judicial determination was made on the issue. However, the employer has since revised its policy to be less restrictive.

• In April of this year, a settlement between the Newspaper Guild and a publishing company avoided a threatened complaint by the NLRB that would have included an accusation that the company inappropriately reprimanded a reporter for a message posted on Twitter. As part of the settlement of that matter, the company agreed to negotiate a new social media policy that would more effectively protect employees’ rights to communicate regarding work conditions.

• On May 9, 2011, the NLRB issued a complaint alleging that Hispanics United, a Buffalo non-profit that provides social services to low-income clients, violated the NLRA when it fired five employees after they used Facebook to criticize working conditions. A hearing on the matter is scheduled in Buffalo, NY, for June 22, 2011.

In this most recent case, a car dealership’s salesperson was unhappy with the quality of food and beverages at a dealership event promoting a new BMW model.  A Huffington Post reporter summarizes the issue this way: “[The salesman] and a few co-workers apparently felt that Sam's Club hot dogs and bottled water were no way to hype a luxury car -- and they thought their sales might suffer because of it.  The salesman's critical commentary [on his own Facebook page] included photographic evidence of the unremarkable snacks.”  Other employees had access to that Facebook page. When the dealership’s management asked the salesman to remove the posts, he immediately complied. Nevertheless, shortly after a subsequent meeting with his managers, the employee was terminated.

According to the NLRB, the employee’s Facebook posting was protected concerted activity within the meaning of Section 7 of the National Labor Relations Act (NLRA), because it related to a discussion among employees about the terms and conditions of their employment. Under the NLRA, employees’ communications about work-related issues are entitled to protection, and employers are prohibited from stifling that activity.

The dealership, through its attorney, has stated that the salesman was fired for reasons other than the protected communication.  Unless this matter is settled, the case will be heard by an administrative law judge on July 21, 2011, in the Chicago Regional office of the NLRB.

Clearly, the NLRB has increased its focus on social media communications, and is taking the position that employer policies cannot impose limitations on electronic communications to the extent that those postings include discussion regarding the terms and conditions of employment. Based upon that increased focus, employers should take the opportunity to review their social media policies, and to train managers and supervisors to coordinate with their human resources departments any planned disciplinary actions based upon the use of electronic communications, especially if those communications involve personal postings.
 

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On May 9, 2011, the National Labor Relations Board (NLRB) issued a complaint alleging that Hispanics United, a Buffalo non-profit that provides social services to low-income clients, violated the National Labor Relations Act (NLRA) when it fired five employees after they used Facebook to criticize working conditions. This complaint comes on the heels of two other highly publicized situations in which the NLRB asserted that companies violated employees’ rights by limiting the information that could be posted on social media sites.

Earlier this year, employers watched with interest as the NLRB pursued an employer in Connecticut after that company fired an individual for posting a negative comment about her supervisor on her own Facebook page, using her home computer to do so. The NLRB argued that the employer maintained and enforced overly restrictive policies regarding blogging and Internet postings outside of work, and that such enforcement by the company could be viewed as a violation of the National Labor Relations Act, which precludes restriction of employees’ “concerted activity.” That case ultimately was settled, and no administrative or judicial determination was made on the issue. However, the employer has since revised its policy to be less restrictive.

In April of this year, a settlement between the Newspaper Guild and a publishing company avoided a threatened complaint by the NLRB that would have included an accusation that the company inappropriately reprimanded a reporter for a message posted on Twitter. After posting a message that said “One way to make this the best place to work is to deal honestly with Guild members,” the reporter was contacted by phone by her manager and was told that her post was a violation of the company’s social media policy. The NLRB said that it would file a complaint against the company, because the call to the reporter could “chill” her ability to discuss working conditions; it also claimed that the company’s social media policy was overly restrictive. As part of the settlement of that matter, the company agreed to negotiate a new social media policy, one that would include language that would protect employees’ rights to engage in concerted activity about working conditions, as provided under federal law.

The NLRB’s complaint against Hispanics United, filed May 9, 2011, stems from a situation in which an employee posted - to her own Facebook page - information in support of a co-worker who had claimed that the organization did not do enough to help its clients. That post generated responses and additional comments from other employees who criticized their working conditions and defended their own performances. After hearing about the postings, Hispanics United fired five individuals who participated in the online discussion. The basis of the firings was that the online comments constituted “harassment” of the employee mentioned in the originally posting. However, the NLRB is asserting that the Facebook postings involved discussion among employees about their own working conditions, and therefore was protected activity. A hearing on the matter is scheduled in Buffalo, NY, for June 22, 2011.

The interesting difference between the earlier situations and this most recent complaint is the fact that Hispanics United is a non-union company. Employers must recognize that the National Labor Relations Act, which prohibits the restriction of “concerted activity” among employees, protects both union and non-union workers. Further, the NLRB has made it clear that it can file a complaint based upon a company’s written internet policy even in the absence of a specific factual instance of violation of such policy. Under the NLRA, employees have the right to engage in protected concerted activity, which can include discussions, meetings, or even a single employee who is discussing the personal character of a particular supervisor.

This case is another instance that reminds employers to take care to draft employment policies - not only social media policies - that do not impinge upon employees’ rights to act in concert and do not keep employees from acting to work toward positive changes in the terms and conditions of the workplace.
 

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