Q: What is the current rule on whether an employee can use our company’s email system to distribute union material? Also, are we permitted to require employees to keep workplace investigations confidential without running afoul of the National Labor Relations Act?
A: There are actually two issues that arise from
Q. I heard there have been some significant National Labor Relations Board decisions recently. What do I need to know about them?
A. Over the past few months, the Board’s Republican majority has issued a series of employer-friendly decisions. They involve various topics, including expansion of employer property rights, classification
Q: How does the current National Labor Relations Board view employee handbook policies?
A: Under the Trump administration, the National Labor Relations Board (“Board”) has shifted in a more employer-friendly direction, including with respect to workplace policies. In a December 2017 decision, the NLRB reassessed the standard for evaluating when neutral workplace rules violate the National Labor Relations Act (NLRA). In that decision, the Board defined three categories of employer handbook rules and policies: (1) rules that are generally lawful; (2) rules that warrant individualized scrutiny; and (3) rules that are plainly unlawful.
Q. What is the current standard for determining whether an individual is an employee or independent contractor for purposes of the NLRA?
A. On Jan. 25, 2019, the Republican-led National Labor Relations Board affirmed the acting regional director’s decision that drivers of a shared airport ride service were independent contractors,
Q. Our Company just terminated an employee for a social media post that was in violation of our social media policy. Will she be entitled to unemployment compensation benefits?
A. Possibly.
While unemployment compensation laws vary from state-to-state, former employees generally are entitled to benefits unless the employer can prove that the employee’s employment ended due to a disqualifying reason, such as willful misconduct or voluntary discharge.
Yesterday, the National Labor Relations Board issued yet another decision that makes it easier to unionize workers deemed “joint employees” of a staffing agency and its business customer. In its July 11, 2016 decision in a case called Miller & Anderson, Inc. and Tradesmen International and Sheet Metal Workers International Association, Local Union No. 19, AFL-CIO, the Board overturned a 2004 ruling known as Oakwood Care Center that required a business customer and a staffing agency to consent before a union election covering both jointly employed temporary workers and solely employed regular employees of the customer can occur. Yesterday’s ruling reverses the consent requirement and takes us back to a prior ruling where consent was not required. Now (as before 2004) a union election by regular and temporary workers together can occur simply where the Board finds that an employer’s workers and staffing agency employees working with it have an adequate “community of interest” to be part of one unit for unionization.
While speaking at a conference this year, I asked members of the Human Resources community to raise their hands if they routinely instructed employees not to discuss internal investigations. No surprise, most of the hands (maybe all of them) went up.
For many good reasons, most employers instruct employees to keep the fact of and contents of investigations confidential. For example, when investigations become public, employees often become less willing to come forward and discuss the nature of the investigation. Also, in most instances the nature of the investigation involves sensitive information, like a harassment complaint. Yet, the National Labor Relations Board (NLRB) has indicated that reasons such as these are not legally sufficient to tell employees to keep their mouths shut.
Earlier this year, on March 18, 2015, NLRB General Counsel Richard F. Griffin, Jr. issued a report covering recent cases on employee handbook rules that encroached on employees’ Section 7 rights under the National Labor Relations Act. Griffin’s report (GC Memo 15-04) stated that the vast majority of handbook violations are due to employers’ failure to comply with the first prong of the Lutheran Heritage test. The report also provides timely guidance to employers in light of a recent NLRB decision against a fast-food restaurant’s finding Section 7 violations in its employee handbook.
Our firm’s latest “Advisory” just went out this afternoon explaining the D.C. Circuit Court of Appeals‘ ruling from last Friday that President Obama’s “recess” appointments to the National Labor Relations Board were unconstitutional, and therefore the Board was without the required quorum to act in a case from last year in which it found a soda-bottling company had committed an unfair labor practice.
This case involves a fascinating legal issue of the interpretation of the U.S. Constitution and the separation of powers between the Legislative and Executive branches (at least for those who find such things fascinating). This decision is also good news for a particular soda-bottling company that challenged the NLRB’s decision.
When you are conducting a workplace investigation, do you instruct employees interviewed not to discuss the investigation with other employees? You probably do. It protects the fairness, integrity and truth-gathering function of the investigation. It allows you to do the best possible investigation.
Did you know, however, that giving that instruction to employees — to not discuss the investigation with co-workers — may be illegal? The National Labor Relations Board (NLRB) recently said it is. Read on for their explanation and what you can do about it.