SubscribeBefore the 2020 election, then-US Presidential candidate Joe Biden vowed to be the “strongest labor president you have ever had.” Now having been in office for almost a year, how has President Biden changed the country’s labor environment, and what can employers expect out of his administration? In these slides, McDermott Partners Ron Holland and Kristin E. Michaels and McDermott Associate Philip Shecter provide insight into US labor activity and how the latest labor developments affect both union and nonunion employers.
National Labor Relations Board
Labor and Employment Policy to Watch in 2021’s Second Half
As US Congressional Democrats continue their advocacy for a pro-worker agenda, multiple bills and rules could bring about sweeping changes to the civil rights and labor protections for millions of workers. These include:
- The Equality Act
- The Protecting Older Workers Against Discrimination Act
- The Pregnant Workers Fairness Act
- The Protecting the Right to Organize Act (PRO Act)
- The US Department of Labor’s Overtime Rule
According to McDermott partner Ellen Bronchetti, the PRO Act, for example, would enshrine a strict ABC test into federal law that would analyze whether workers qualify as independent contractors.
“I think that because Biden has promised to strengthen worker protections and strengthen workers’ right to organize, I think employers need to keep a real close eye on this legislation or versions of the legislation or pieces that might get pulled out and put elsewhere,” Bronchetti said in an article published in Law360.
Will the Biden Administration Upend Workplace Law?
Joe Biden’s ascendance to the presidency not only spells doom for many of the Trump administration’s business-friendly employment policies; it also may place established tenets of federal labor law on the chopping block. Biden may bring with him to the White House an ambitious pro-labor platform aimed at giving workers and unions a leg up after four years in which the Trump administration moved the legal needle sharply in employers’ direction.
A recent article in Law360, featuring McDermott partner Ron Holland, outlines four areas that labor and employment lawyers should watch after the Biden transition.
Labor Relations Could See Changes under Biden
As the US election cycle begins to wind down, labor stakeholders say one thing is clear: Labor relations across the nation could see big changes under Democratic president-elect Joe Biden. In a recent article by the Daily Journal, McDermott partners Ron Holland and Chris Foster discuss the impacts a Biden presidency could have on the National Labor Relations Board and the state of labor relations in the United States.
The Department of Labor Issues the Most Expansive Definition Yet of Joint-Employer Status
In its first major guidance of 2016, the U.S. Department of Labor has issued a definition of joint-employer status under the Fair Labor Standards Act that is even broader than the definition of joint-employer status issued by the National Labor Relations Board last summer. Coupled with its 2015 guidance on the misclassification of independent contractors, the DOL has greatly expanded the definition both of who is an employee and who is an employer.
McDermott Predictions for 2015 on Employee Social Media Accounts
In 2015, I predict an increased focus on employees’ rights regarding their personal social media accounts. Since 2012, individual states have enacted laws prohibiting employers from requesting access to their employees’ (or job applicants’) personal social media accounts. In 2014 alone, six states enacted such laws, bringing the total number of states with this type of legislation to 18. (Click here for additional analysis of the impact of these laws on employers.)
In addition to individual states’ laws, I expect clarification on a national level regarding employer policies and actions related to employees’ personal social media accounts. In the past year, the National Labor Relations Board (NLRB) has started to focus on whether employer policies regarding employee social media accounts are consistent with the National Labor Relations Act (“Act”). The Act prohibits employers from interfering with employees who come together to discuss their employment for the purpose of collective bargaining or other mutual aid or protection. According to the NLRB, employees’ comments on their personal social media accounts can constitute protected activity under the Act. One recent NLRB case involved two employees who posted on their Facebook accounts about the employers’ alleged failure to correctly withhold taxes from their paychecks. The employer terminated the employees because of their comments on their personal social media accounts. The NLRB found that the employee’s comments were protected under the Act, ordered the employer to reinstate the employees, and ordered the employer to clarify its social media policy. The employer is now appealing the NLRB’s determination in court.
I predict not only that more states will enact employee social media account legislation, but also that the NLRB and the courts will provide more guidance on employer restrictions or sanctions related to employee social media use.
Acting General Counsel of the NLRB Issues Second Report on Social Media
by Heather Egan Sussman, Linda Doyle and Sabrina Dunlap
On Wednesday, January 25, 2012, National Labor Relations Board (NLRB) acting General Counsel Lafe Solomon released a second report describing social media cases reviewed by his office. The report (Operations Management Memo) addresses 14 cases related to social media and employer social media policies.
Many of the cases reviewed involved employees who had been discharged after they posted comments on Facebook. The general counsel found that a number of the terminations were improper because employees had engaged in protected activity and their terminations arose from unlawful employer policies. However, the general counsel upheld several terminations – despite overly broad employer policies – where the employees involved were not engaged in protected activity and had merely posted general complaints or individual gripes unrelated to working conditions or wages.
The report emphasizes two key points made in an earlier report in August 2011: 1) Employer policies should not be so broad that they prohibit activity protected by federal labor law, such as the discussion of wages or working conditions; and 2) an employee’s comments on social media sites will generally not be protected if they are simply complaints unrelated to working conditions or wages that impact a group of employees.
There are three cases involving social media questions currently pending before the NLRB and those decisions will likely give further guidance on acceptable employer social media policies.
In addition, McDermott partner Heather Egan Sussman will be speaking with Lafe Solomon, and Edward Loughlin (EEOC) on this topic at the International Association of Privacy Professionals (IAPP) Global Privacy Summit, Wednesday, March 7, 2012.
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 ALJ agreed that the employee had engaged in protected activity in discussing the sales event, the Judge held that the employer actually terminated the employee for his other Facebook posts, which mocked a co-worker for allowing a teenager to test drive a Land Rover, who ultimately drove the car into a nearby pond. The Judge found that the NLRA did not protect such a posting because it had no connection to the terms and conditions of employment, and was posted solely by the employee, not as part of a discussion with other employees. Therefore the employer did not violate the NLRA when it fired the employee.
In addition to the Facebook postings, the Judge also considered whether four provisions of the employer’s handbook violated Section 7 of the NLRA. The Judge dismissed the complaint regarding a provision that encouraged employees to have a good attitude at work, because it could be read to protect the relationship between the dealer and its customers, rather than to restrict employees’ Section 7 rights. However, the Judge held that the three remaining provisions, which each limited employees’ right to speak about employment, violated the NLRA because they all could be read as curtailing employees’ Section 7 rights, and if employees complied with these restrictions, they would not be able to discuss working conditions with union representatives or lawyers.
Based on this ALJ decision, employers should continue to exercise caution when making employment decisions based on social media comments. There continues to be a fine line between protected activity and unprotected activity when it comes to employees’ social media comments about their employers. In addition, employers should review and possibly revise their handbooks to ensure they cannot be read as restricting employees’ Section 7 rights.
Administrative Law Judge Finds Employer Unlawfully Discharged Employees Based on Facebook Posts
by Stephen D. Erf, Heather Egan Sussman and Sabrina E. Dunlap
In a first of its kind ruling, a National Labor Relations Board (NLRB) Administrative Law Judge (ALJ) found that an employer unlawfully terminated five employees because they posted comments on Facebook related to working conditions. This is a landmark decision because, up to this point, employers have only been able to rely on the prosecution trends of the General Counsel’s office, including a recently issued report on the topic, and not actual decisions by the adjudicative body of the NLRB.
This landmark case involved an employee of Hispanics United of Buffalo (HUB) (a nonunionized organization), who posted a message on Facebook sharing critical comments made by a coworker concerning employees’ poor job performance and asking for the employees’ reactions. Five employees commented on the post, defending their job performance and criticizing the critical employee and their working conditions, including work load and staffing problems. HUB later discharged the Facebook poster and the employees who responded to the post, stating that their comments constituted harassment of the critical coworker.
Based on an unfair labor practice charge filed by one of the employees, the NLRB’s Buffalo Regional Director issued a complaint in May 2011. The ALJ heard the case in July and, on September 2, issued a written decision finding that the employees’ Facebook posts were protected concerted activity under Section 7 of the National Labor Relations Act (NLRA) because they concerned a conversation among coworkers about the terms and conditions of employment and the employees’ conduct was not sufficiently inappropriate as to lose the protection of the NLRA. The ALJ awarded the employees back pay and ordered HUB to reinstate the five employees. The ALJ also ordered HUB to post a notice at its Buffalo facility explaining to employees their rights under the NLRA and committing not to violate those rights in the future.
While NLRB complaints related to social media have been on the rise, this is the first ALJ decision specifically addressing employees’ use of Facebook. As a result, employers are wise to consider the ALJ’s decision when disciplining employees based on social media activity.
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 cases, providing guidance on when the General Counsel’s office (the prosecution arm of the NLRB) will conclude that activity is protected. For example, in cases where the employee discussed his or her social media posts with other employees, or had discussions with coworkers and subsequently drafted a post based on such discussions, the General Counsel’s office tended to deem this “protected concerted activity” such that an employee could not be disciplined for the conduct. By contrast, when employees did not discuss posts with coworkers, or where an employee’s posts were merely “individual gripes” containing no language suggesting an attempt to engage other employees into group action, the General Counsel’s office generally concluded there was not protected activity, and the resulting disciplinary action did not violate the law. One case involving inappropriate and offensive “tweets” by an employee about his employer did not involve protected concerted activity because the tweets did not relate to the terms and conditions of employment, and again, did not seek to involve other coworkers in issues related to employment.
As for the content of workplace social media policies, the key takeaway from the report is that employers should avoid using overbroad terms that could be construed to prohibit protected concerted activity. For example, the General Counsel’s office has taken issue with policies barring comments compromising the “privacy or confidentiality” of a coworker or that could “damage the reputation” of the employer, or that could “put your job in jeopardy,” because the terms were not defined in the policies. As a result, the General Counsel’s office concluded that the undefined terms could “reasonably be interpreted as prohibiting protected employee discussion” of the terms and conditions of employment, which would be unlawful.
However, the General Counsel’s office declined to prosecute an employer based on its policy that prohibited employees from “pressuring” coworkers to connect or communicate via social media, finding that this restriction could not be reasonably read to restrict protected activity. Similarly, the General Counsel’s office concluded that policies limiting employee contact with the media in an effort to ensure a [...]
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