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NLRB Changes Course on Mandatory Arbitration Agreements

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August 14, 2019

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In 2018, in Epic Systems Corp. v. Lewis, the U.S. Supreme Court stated that employers may require employees to sign arbitration agreements with class action waivers. Recently, the National Labor Relations Board (NLRB) took the Epic decision even further.

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NLRB: Employees Can Discuss Discipline

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April 15, 2019

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The National Labor Relations Board (NLRB) recently released an Advice Memorandum dated August 7, 2018, addressing policies prohibiting employees from publicly disparaging the employer. Specifically, a policy that prohibits employees from “engaging in conduct that could adversely affect [the employer’s] business or reputation,” including “publicly criticizing [the employer], its management, or its employees,” was a violation of the National Labor Relations Act (NLRA), because the impact on employees’ Section 7 rights outweighed the employer’s business justification for the rule. This was a blanket policy that was not narrowly tailored to avoid infringing on employee rights, i.e., “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

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NLRB Update: Dress Code, Cell Phones, and Media Statements, Oh My!

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March 14, 2019

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On March 14, 2019, the National Labor Relations Board (NLRB) released an advice memorandum dated July 31, 2018, providing insight on numerous topics.

  • Dress code policy: The NLRB approved of a policy that prohibited “[a]ny items of apparel with inappropriate commercial advertising or insignia.” “Inappropriate” only referred to images that are inconsistent with a professional, business-like appearance, and did not prohibit employees from exercising rights protected by the National Labor Relations Act (NLRA).
  • Personal cell phone use: A policy that prohibits personal cell phone use on non-working time during working hours violates the NLRA, because employees have a right to communicate with each other during breaks using means that are not monitored by the employer. An employer’s legitimate business interests in preventing distractions, lost time, and lost productivity occur during work time.
  • Confidential employee information: Employers may restrict employees who have access to employee confidential information as part of their job from disclosing such information. The limitation is specific and within an employer’s legitimate business interests, and does not prohibit employees from sharing their own private information.
  • Media communications: Employers may restrict media communications to designated representatives concerning statements that may be interpreted as an official employer position or speaking on the employer’s behalf, provided that employees are not prohibited from communicating with the media about workplace matters.

Action Items

  1. Review the advice memorandum here.
  2. Have policies reviewed for compliance.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2019 ManagEase

NLRB: Issues New Guidance on Employee Handbook Rules

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June 6, 2018

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On June 6, 2018, the Office of the General Counsel of the National Labor Relations Board (“NLRB”) issued “Guidance on Handbook Rules Post-Boeing.” The new Guidance elaborates on a December 14, 2017 announcement that sets forth three categories of rules to help define when an employer’s policies violate the National Labor Relations Act (“NLRA”).

Ninth Circuit: Tribal Casinos Must Obey NLRA

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April 26, 2018

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According to the Ninth Circuit Court of Appeals, even self-governed tribal land must obey the provisions of the National Labor Relations Act (“NLRA”).  In National Labor Relations Board v. Casino Pauma, the circuit court stated that the casino violated the NLRA by attempting to limit protected union activity.

Under the NLRA, employees have the right to engage in specified protected activities relating to improving or discussing working conditions, free of employer retaliation or adverse action.  At Casino Pauma, operated by the Pauma Band of Mission Indians and located on the tribe’s reservation, a number of casino workers began distributing union leaflets to customers entering the casino.  The employees were originally removed by security.  When they attempted to distribute leaflets some weeks later, the employees were disciplined.

The NLRB filed a complaint on behalf of the employees.  An administrative law judge found that the casino violated the NLRA by attempting to interfere with protected union activities, and the circuit court agreed, stating that the NLRA applies to tribal employers.

Action Items

  1. Review the full text of the case here.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

THE SCOTUS DECISION IS FINALLY HERE – Revisit Your Arbitration Agreements!

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May 21, 2018

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At long last, the U.S. Supreme Court finally issued its ruling on whether or not class action waivers in arbitration agreements violate the National Labor Relations Act (“NLRA”) – short answer, they don’t.

Fifth Circuit: Mandatory Class Action Waivers Do Not Violate the NLRA

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August 7, 2017

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In a recent decision, the Fifth Circuit reaffirmed its positions that mandatory class action waivers do not violate Section 7 of the National Labor Relations Act (“NLRA”). In Convergys Corp. v. NLRB, the Fifth Circuit stated that an employee’s right to a collective action is procedural, not substantive, and signing a waiver therefore did not violate any substantive rights under the NLRA.