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Employers Grapple with Workers’ Off-Duty Behavior

Employees gathering with friends, expressing their political views and posting about these things on social media have created for employers an increasingly urgent question: When the people engaging in unsafe or politically charged behavior are your employees, and the conduct happens off the clock, is it appropriate or even possible to discipline them? Access the article.

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What to Do When Scared Workers Do Not Respond to Work Due to COVID-19

Some essential workers are refusing to go to work out of fear of contracting COVID-19. Their employers must weigh the employees’ legal rights and understandable health concerns with the organizations’ business needs. It can be a tough balancing act. In a recent article, McDermott Partner Pankit Doshi said employers may relax documentation requirements due to the difficulty some employees could have obtaining access to medical providers during the pandemic and to encourage ill employees to stay away from work. Access the article.

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Wearable Technologies Are Here To Stay: Here’s How the Workplace Can Prepare

More than a decade ago, “dual use” devices (i.e., one device used for both work and personal reasons) began creeping into workplaces around the globe.  Some employees insisted on bringing fancy new smart phones from home to replace the company-issued clunker and, while many employers resisted at first, dual use devices quickly became so popular that allowing them became inevitable or necessary for employee recruitment and retention, not to mention the cost savings that could be achieved by having employees buy their own devices.  Because of early resistance, however, many HR and IT professionals found themselves scrambling in a reactive fashion to address the issues that these devices can raise in the workplace after they were already prevalent.  Today, most companies have robust policies and procedures to address the risks presented by dual use devices, setting clear rules for addressing privacy, security, protection of trade secrets, records retention and...

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ALJ Finds Employee’s Facebook Comments Unrelated to Working Conditions are not Protected Under the NLRA

by Stephen D. Erf, Heather Egan Sussman and Sabrina E. Dunlap Two weeks ago, we wrote about a decision from an Administrative Law Judge (ALJ) (available here) finding that the National Labor Relations Act (NLRA) protected an employee’s Facebook comments made about his employer.  Last week, an ALJ issued another decision involving social media and the NLRA, finding that an employee had engaged in some protected activity, but that he was ultimately fired for other, unprotected activity.  In Karl Knauz Motors, a former salesperson claimed that he was fired after he posted pictures and comments on Facebook criticizing his employer’s choice of serving hot dogs at a sales event introducing the new BMW 5-series.  The National Labor Relations Board (NLRB) recently issued a report related to social media (found here), in which it noted the employee’s posts in the BMW case were protected activity because they related to the terms and conditions of employment. While the...

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NLRB Releases Report on Social Media Decisions

by Sabrina E. Dunlap, Stephen D. Erf and Heather Egan Sussman In April 2011, we issued a blog post outlining some of the National Labor Relations Board’s (NLRB) decisions regarding employee use of social media (the post can be accessed here). In an effort to provide guidance on the issue, the Acting General Counsel of the NLRB (General Counsel) recently issued a report (found here) addressing cases from the past year arising in the context of social media use. The report uses 14 cases to illustrate how the General Counsel’s office determines that use of social media qualifies as protected concerted activity, and when the mere contents of an employer’s social media policy can give rise to liability under the National Labor Relations Act (NLRA), even when an employer’s employees are not represented by a union. While the distinction between protected and unprotected activity on social media sites is not always obvious, several trends emerge from the illustrative...

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NLRB Releases Poster For Posting By November 14, 2011

by Heather Egan Sussman, Sabrina E. Dunlap and Stephen D. Erf As an update to our previous blog entry, the National Labor Relations Board (NLRB) has released the private employer notice of rights under the National Labor Relations Act (NLRA).  As of November 14, 2011, covered employers must post the 11-by-17-inch notice in a conspicuous place, where other notifications of workplace rights and employer rules and policies are posted.  The NLRB states that employers also should publish the notice on an internal or external website if other personnel policies or workplace notices are posted there. The NLRB has also posted Frequently Asked Questions on the posting requirement, which covers topics such as when employers are covered by the NLRA, and what to do if a substantial share of the workplace speaks a language other than English.

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NLRB Issues Final Rule on Notification of Employee Rights

by Stephen Erf and Heather Egan Sussman The National Labor Relations Board (NLRB) issued a final rule requiring private sector employers to notify employees of their rights under the National Labor Relations Act.  The Rule requires private sector employers who fall under the National Labor Relations Act to post the employee rights notice in conspicuous places at where other workplace rights notices are usually posted. The new notice states that employees have the right to act together to improve working conditions and wages, to form, join and assist unions, to collective bargaining, or to refrain from any of these activities. The notice also provides examples of illegal conduct and tells employees how to contact the NLRB with questions or complaints. NLRB regional offices will provide the notice of rights at no charge, or the notice can be downloaded from the Board website and printed in color or black and white.  Translated versions, which will also be...

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Recent NLRB Activity Zeroes In On Social Media Policies

by Stephen D. Erf, Heather Egan Sussman, Christopher Scheithauer and Sabrina E. Dunlap The law is not new – it’s just being applied to our newest forms of communication:  Twitter, Facebook and others.  Even the legal framework is relatively straightforward: Section 7 of the National Labor Relations Act (NLRA) protects “concerted activities,” which include circumstances where employees seek to “initiate or induce” group action for “mutual aid or protection.” In today’s workplace, activities such as blogging, or posting messages on social networking websites, can be considered concerted activity, and unless the activity falls within one of the exceptions to the NLRA’s protections (e.g., confidentiality breaches, extreme disloyalty, etc.), the law limits an employer’s control over what employees may write and post.  In one recent case, the National Labor Relations...

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