National Labor Relations Act

Since its publication on November 5, 2021, employers have been reviewing the Occupational Safety and Health Administration’s (OSHA) 490-page Emergency Temporary Standard (ETS) and taking steps to create and update their employment policies to comply with it.

The National Labor Relations Board (NLRB or the Board) has added another item to the to-do lists of those employers covered by the ETS with unionized workforces. On November 10, 2021, NLRB’s operations management division issued a memo reminding unionized employers of their bargaining obligations under the National Labor Relations Act in connection with policy changes being contemplated in light of the ETS.Continue Reading Complying with OSHA’s ETS? Don’t forget about your duty to bargain, says NLRB

The National Labor Relations Board (the “Board”) issued a decision on July 21, 2020, which will aid employers in their ability to discipline or discharge an employee who engaged in abusive or offensive conduct in connection with protected concerted activity. In General Motors LLC, 369 NLRB No. 127 (2020), the Board modified its standard for determining under what circumstances profane language or sexually or racially offensive speech loses the protection of the National Labor Relations Act (the “Act”).

Before today, there were several circumstance-specific standards used by the Board in determining whether an employee was lawfully disciplined or discharged when they made profane, racist or sexually harassing comments in connection with Section 7 activity. There was one standard for workplace confrontations with supervisors or managers as applied in Atlantic Steel. A second standard was used for examining social media posts and most other  interactions between employees, referred to as the “totality of circumstances.”  Still, another standard was used when offensive statements or conduct occurred on the picket line, as set forth in Clear Pine Mouldings. All of these standards assumed that the employee’s Section 7 activity was inseparable from the abusive comments and conduct. Additionally, in many circumstances the outcome of those cases conflicted widely with an employer’s obligations under federal, state and local discrimination laws.Continue Reading NLRB ends long-time standard which protected obscene, racist and sexually harassing speech in connection with Section 7 activity

Several labor organizations, along with racial and social justice organizations, conducted a mass walkout on July 20, 2020 to protest racial inequality and working conditions in the United States.  Thousands of workers in more than 200 cities walked off the job on a full-day strike while others who were unable to strike for a full day walked out about for eight minutes.  According to the Strike for Black Lives website, the purpose of the strike was to demand higher wages, better jobs, the right to unionize, and healthcare for all.  These organizations specifically call for corporations to address racism in the workplace, raise wages, provide healthcare, and provide ample personal protective equipment (PPE), among other things.

These types of mass walkouts raise several considerations for employers as they attempt to balance their support for racial and social justice with their tolerance of competing views and their need to maintain operations.  While some employers may allow their employees to participate with little to no disruption to their operations, others, such as hospitals, will have to find ways to continue to run their operations (perhaps by hiring temporary workers) if they find themselves with reduced staff.  Other employers may be forced to temporarily close or take other measures to manage the sudden loss of available employees.
Continue Reading Responding to employee advocacy and workplace walkouts during times of protest

In a recent decision issued on March 21, 2019, an administrative law judge (ALJ) held that confidentiality clauses in arbitration agreements violate the National Labor Relations Act (the Act). Specifically, the ALJ held that such provisions run afoul of section 8(a)(1) of the Act, and unlawfully require a waiver of employees’ rights under section 7 of the Act to discuss and publicly disclose their terms and conditions of employment. Many may view rulings like this as yet another attack on otherwise lawful arbitration agreements.

In the matter before the ALJ, an employer had lawfully required its employees to enter into an arbitration agreement as a condition of continued employment. The arbitration agreement included a confidentiality clause. The confidentiality clause provided, in part: “The parties shall maintain the confidential nature of the arbitration proceeding and the award, including all disclosures in discovery, submissions to the arbitrator, the hearing, and the contents of the arbitrator’s award[.]”

Although the confidentiality clause, as written, appeared to impose a duty of secrecy rather than a prohibition on disclosure, the ALJ instructed that employees would nonetheless reasonably understand the clause’s message to be one prohibiting them from discussing or disclosing information pertaining to the arbitration or arbitral award. Further still, the clause would reasonably cause employees to believe that they could be disciplined if they were to disclose the information.Continue Reading Tell everybody: Confidentiality clauses may violate employees’ section 7 rights