By Erin Dougherty Foley and Craig B. Simonsen

Seyfarth Synopsis: A new NLRB decision that attempts to define further the boundaries of protected speech under the NLRA.

In Laborers’ International Union of North America and Mantell, Case No. 03-CB-136940 (NLRB September 7, 2016) the initial question in the case was whether the Union restrained or coerced Frank Mantell in the exercise of a Section 7 right.

The initial question raises another question of whether Mantell engaged in any activity protected by Section 7. Mantell’s Facebook posts concerned perceived unfairness affecting apprentices. Mantell was a journeyman, however, not an apprentice.

Mantell, who was a member of the Union Local 91, posted comments on a Facebook page that criticized the Union for allowing a Niagara Falls city councilman, running for mayor, to obtain a journeyman’s book. The Facebook page was accessible to about 4,000 people, some of whom were members of Local 91.

Local 91’s Business Manager, Richard Palladino, filed internal charges against Mantell. The Union’s executive board conducted a trial on the charges focused on the Facebook posts. The executive board found Mantell guilty of the charges and made a decision to fine Martell $5,000 and suspend his membership for 24 months. This decision was ratified at a monthly Union membership meeting. The Union removed Mantell from the hiring hall’s out-of-work list the next day. Mantell then appealed the decision to the International Union. The International subsequently informed Local 91 that it needed to dismiss the charges against Mantell.

The NLRB Administrative Law Judge (ALJ) noted that the National Labor Relations Act Section 7 provides that, “employees shall have 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.”

The ALJ found that Mantell’s Facebook posts were protected under the Act. The decision noted that “issuing a journeyman’s book to someone allegedly ineligible to receive one, affected Mantell in that one more journeyman would arguably impact his opportunities for employment.” As seen in NLRB v. Peter Cailler Kohler Swiss Chocolate Co., 130 F.2d 503, 505-506 (2d Cir. 1942), employees raising concerns about a common cause with fellow employees are, in fact, engaged in protected activity. “Even though the immediate quarrel may not concern them they may be assured that if their ‘turn ever comes,’ they will have the support of those they are then helping.”

The ALJ also rejected the Union’s assertion that Mantell forfeited his protection of the Act by maliciously defaming the Union and the Business Manager. The Union complained that one of Mantell’s comment, in which he suggested that gifts were being given the person running for mayor, was untrue. However, the ALJ concluded that nothing Mantell said in his Facebook posts was maliciously and knowingly untrue, citing MasTec Advance Technologies, 357 NLRB 103, 107 (2011), and allowing the protection of the Act to remain intact.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Labor & Employee Relations Team.

 

 

 

 

By Erin Dougherty Foley and Craig B. Simonsen

Compliance Concept on İnterface Touch ScreenSeyfarth Synopsis: A couple of Circuit Court decisions last week may cause some trepidation for your company’s HR managers as they shuffle through the off-duty activities of company employees that get brought onto the company’s property and into its business. This blog offers some comments on the decisions, and recommendations for employers.

Last week, we had decisions from two federal circuit courts that may be concerning to employers. In Robert Swindol v. Aurora Flight Sciences Corp., No. 14-60779 (5th Cir. Aug. 8, 2016), the employer had what it thought was a legal company policy that banned firearms from company property, including the employee parking lot. The employee had a firearm in his automobile, which was discovered by the employer, who then terminated the employee for violation of the no firearms policy.

In Swindol, the plaintiff argued that the employer wrongfully terminated him for keeping a firearm locked inside his car in violation of company policy. He alleged his action was protected by Mississippi Code Chapter 9, Section 45-9-55 (which states that an employer is not permitted to prohibit transportation or storage of firearms on employer property). The employer responded that the plaintiff could not assert wrongful discharge because Section 45-9-55 did not create an exception to the employment-at-will doctrine; however, the Mississippi Supreme Court weighed in on that argument in an earlier, related decision, Robert Swindol v. Aurora Flight Sciences Corp., No. 2015–FC–01317–SCT, 2016 WL 1165448, at *6 (March 24, 2016), and held that the State statute could make an employer liable for wrongful discharge.  Thus, the Fifth Circuit concluded that the plaintiff had stated a claim for wrongful discharge under Mississippi law where he alleged he was terminated when the employer enforced a legally impermissible firearms policy against him.

In Ronald Godwin v. Rogue Valley Youth Corr. Fac., et al., No. 14-35042 (9th Cir. Aug 10, 2016), that employer terminated the employment of that plaintiff for wearing a motorcycle club insignia and expressing that association. The district court held that the plaintiff “was not wrongfully terminated in violation of his First Amendment rights to association and free speech.”  On appeal the plaintiff challenged that ruling arguing that his association with the motor cycle club would be protected under the First Amendment, which in this context “required that his expression/association relate to a matter of public concern.”

On appeal, the Ninth Circuit Court of Appeals found that “public concern is something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication.” Citing City of San Diego v. Roe, 543 U.S. 77, 83-84 (2004) (per curiam). As such, the Court stated, “[a]n employer may not interfere with an employee’s First Amendment rights unless there is evidence that the employee’s actions have actually disrupted the workplace or are reasonably likely to do so in the future.” Citing Nichols v. Dancer, 657 F.3d 929, 931 (9th Cir. 2011).

The Court reversed and held that nothing in the record before the Court indicated that the plaintiff’s expression “impeded the performance of his job duties, adversely affected discipline or personnel relationships, or interfered with the work of the [employer]. Nor does the record indicate that his expression would be reasonably likely to disrupt the workings of the [employer] in the future.”

While these cases are both pretty unique from a factual perspective, they do suggest that it’s a good idea to dust off your employee policies and determine whether they are current, in conflict with any specific state laws in which your company does business, or whether it’s an opportune time to give those policies a tune-up. Additionally, before disciplining or terminating an employee, remember that the courts, the U.S. Department of Labor, and the National Labor Relations Board have consistently and regularly been updating and revising what they consider to be “clearly legal.”  So, stay tuned for further updates on other “things that make you go…. huh???”

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Policies and Handbooks Team.

By Kevin A. Fritz and Rashal Baz

Seyfarth Synopsis: New EEOC study calls for employers to “reboot” workplace harassment prevention efforts, outlines statistics, risks and administrative recommendations.

On June 20, 2016, two Commissioners of the U.S. Equal Employment Opportunity Commission (“EEOC”) presented their findings of a fourteen month workplace harassment study in Washington, D.C.

The U.S. Supreme Court created a cause of action for workplace harassment under Title VII of the Civil Rights Act of 1964 in Meritor Savings Bank v. Vinson about thirty years ago.  Taken back by the amount of sexual harassment claims, Commissioners Chai R. Feldblum and Victoria A. Lipnic co-chaired a Select Task Force that spent more than a year studying harassment and creating prevention strategies.  The report notes that approximately 31% of ~90,000 charges received by EEOC in fiscal year 2015 included a workplace harassment allegation.

Employer Impact

It goes without saying that eliminating workplace harassment can lead to a happier and more productive work environment. The Select Task Force noted other indirect costs include increased turnover and reputational damage.  Additionally, beyond quality of work life, employers bear direct financial costs of harassment.  According to the study, between 2010 through 2015, harassment allegations cost employers $698.7 million in the pre-litigation EEOC process.  The pre-litigation financial liability is just the tip of the iceberg, when compared to the costs of litigating harassment allegations to completion.

All Charges Alleging Harassment FY 2010 – FY 2015

This table shows charge data for harassment allegations filed under all statutes, including sexual harassment charges. This table has been harmonized with other data on this site and only show charges filed with the EEOC.

  FY 2010 FY 2011 FY 2012 FY 2013 FY 2014 FY 2015
Receipts 27,356 27,270 26,777 26,756 26,820 27,893
Resolutions 29,687 31,990 30,501 27,537 25,791 28,642
Resolutions By Type
Settlements 2,853 3,127 2,906 2,656 2,351 2,627
9.6% 9.8% 9.5% 9.6% 9.1% 9.2%
Withdrawals w/Benefits 1,652 1,648 1,652 1,725 1,667 1,860
5.6% 5.2% 5.4% 6.3% 6.5% 6.5%
Administrative Closures 5,607 5,844 5,132 4,777 4,877 5,258
18.9% 18.3% 16.8% 17.3% 18.9% 18.4%
No Reasonable Cause 17,316 19,696 19,331 17,144 15,977 17,866
58.3% 61.6% 63.4% 62.3% 61.9% 62.4%
Reasonable Cause 2,259 1,675 1,480 1,235 919 1,031
7.6% 5.2% 4.9% 4.5% 3.6% 3.6%
Successful Conciliations 523 458 482 488 326 398
1.8% 1.4% 1.6% 1.8% 1.3% 1.4%
Unsuccessful Conciliations 1,736 1,217 998 747 593 633
5.8% 3.8% 3.3% 2.7% 2.3% 2.2%
Merit Resolutions 6,764 6,450 6,038 5,616 4,937 5,518
22.8% 20.2% 19.8% 20.4% 19.1% 19.3%
Monetary Benefits (Millions) $118.7 $118.5 $113.0 $129.1 $93.9 $125.5

The study also identified key risk factors that tend to give rise to workplace harassment claims: (1) homogenous workforces, (2) workplaces where some workers do not conform to workplace norms, (3) cultural and language differences in the workplace, (4) coarsened social disclosure outside the workplace, (5) workforces with many young workers, (6) workplaces with “high value” employees, (7) workplaces with significant power disparities, (8) workplaces that rely on customer service or client satisfaction, (9) workplaces where work is monotonous, (10) isolated workspaces, (11) workplace cultures that tolerate or encourage alcohol consumption, and (12) decentralized workplaces.  Savvy employers would be wise to try and eliminate or mitigate such risks where practicable. While the existence of one risk is not indicative of harassment, it may create a susceptible environment for harassment when coupled with other risks.

Takeaways

The proposed solutions from the EEOC study include a revamping of workplace culture through leadership and accountability, beginning with a top-down approach. The study urges employers to assess their workplaces for the risk factors associated with harassment, conduct intra-office surveys, hold mid-level managers and supervisors accountable for preventing and responding to grievances and actively promote diversity.

Employers should be wary of “zero tolerance” anti-harassment policies that are used as a one-size fits all model. Instead, any discipline that might result from such policy violations should be proportionate to the offense.  Zero tolerance policies may contribute to under-reporting of harassment, “particularly where they do not want a colleague or co-worker to lose their job over relatively minor harassing behavior – they simply want the harassment to stop.”  The study suggests that avoiding zero tolerance policies will encourage employees to report workplace incidents, thus allowing management the opportunity to  tackle and proactively sculpt future anti-harassment training.

As we have previously published, employers should also consider the rising harassment claims stemming from social media platforms and might want to consider including a social media policy that ties into their anti-harassment policies.  This is not without its own pitfalls, though, as the National Labor Relations Board has released guidelines on drafting and updating social media policies, but the case law in that space is far from settled.

Lastly, the report highlights the importance of compliance training and the components to make such training successful. Training should shift from a legal compliance focused approach to a preventative-driven teaching that is supported at the highest levels and routinely evaluated.  In particular, the report highlights workplace civility training and the less-common “bystander intervention” training.  Workplace civility training focuses on positive interactions and respect in the office that transcends Title VII protected classes; while bystander intervention training empowers the individual to speak up when they witness harassment.  The study suggests an interactive approach to training may be more effective.

For additional thoughts and comments on the study, see what our colleagues in the class action world are saying.  If you have a question on this topic or training practices, please contact the authors or your Seyfarth Shaw attorney.

 

By Scott Rabe and Samuel Sverdlov

Seyfarth Synopsis: With seemingly every employee having access to a smart-phone or other recording device, employers without strong social media policies may be placing themselves at greater risk of creating workplace incidents that could be avoided. 

Just a few weeks ago, a video leaked of Los Angeles Lakers rookie, D’Angelo Russell, recording teammate, Nick Young, describing adulterous sexual encounters with a 19-year-old during his engagement to pop star, Iggy Azalea.  The incident has since been described as a prank that backfired.  But this “prank,” and the ensuing media attention it drew, has caused the Los Angeles Lakers to endure a media frenzy, a fractured locker room, and being booed by their hometown fans.

The Lakers incident is just one of the more recent, and public, examples of the risks employers face when employees introduce audio and video recording devices into the workplace. Viral videos such as this example may tarnish a company’s reputation.  A leaked audio recording may disclose important company trade secrets or confidential information.  Or a video recording may misleadingly appear to reveal unlawful practices at a company that could lead to litigation or other unwanted attention.

Where employers may once have understood the work place to be a semi-private space, that has changed. As a result, information and behavior that could be counted on to remain within the confines of the workplace now has the potential to become very public very quickly, with some pretty hefty consequences.

So what can employers do?

One of the best things an employer can do to hedge against these risks is to create a comprehensive social media policy that explicitly defines employee responsibilities with regard to social media. The social media policy should:

  • be geared towards the company’s business and its workforce;
  • underscore the importance of acting professionally when utilizing social media in connection with work as well as the importance of, where possible, maintaining a separation between personal and professional use of social media;
  • strictly prohibit the sharing of non-public confidential or proprietary information, or trade secrets, on social media;
  • be distributed to new hires at orientation and be regularly provided as a reminder to existing employees;
  • make clear that employees can be disciplined for violating the employer guidelines.

An employer may also want to consider putting in place a policy that regulates the use of audio or videotaping in the workplace more generally.   Although the National Labor Relations Board (“NLRB”) has said that wholesale bans on video recording in the workplace are unlawful since they could deter employees from exercising rights guaranteed to them under the NLRA, an employer may want to put in place a policy that prohibits surreptitious recording in the workplace or one that prohibits recording of other employees in the workplace without permission. Additionally, employers should be mindful that many states prohibit any kind of video or audio recording where all participants do not consent to being recorded. Given the scrutiny social media policies receive, however, employers are encouraged to consult with counsel before implementing any policy governing the use of audiotaping or videotaping in the workplace.

Employers should also consider making an investment in the education of managers and supervisors regarding best practices for upholding and enforcing the company’s social media and video recording policies. Given the ubiquity of social media today and its importance to employees’ personal and professional lives, there is significant value to employers in having a workforce that is educated on how to use social media effectively while avoiding potential costly pitfalls.

Warning to Employers: Employee audio and video recordings may be protected

The NLRB has taken an aggressive stance in the last few years in connection with its regulation of employer-imposed limitations on social media use. (To read more about the NLRB’s take on social media use, please see our blogs: here and here.)  In particular, the NLRB has taken increasing action against employers who have sought to prohibit employees from engaging in public discourse regarding the terms and conditions of their employment, especially when such discourse occurs on social media.   As a result, employers need to be careful that their social media and related policies do not place undue limitation on the forum or content where employees can engage in discourse regarding their employment.  For example, an employee’s video post to YouTube where she complains about her wages likely would be considered protected concerted action, and the employer could face liability for interfering.

Relatedly, the Equal Employment Opportunity Commission has also made clear that it views the prohibition by an employer of an employee from recording evidence of discrimination by video or audio means may be “retaliation.” This is true even if the employer maintains a workplace policy forbidding such recording.  Thus, employers should be extra careful before disciplining or regulating the conduct of employees who have already raised claims or complaints against the company.

For more information, please contact the authors, your local Seyfarth attorney or a member of Seyfarth’s Social Media Practice Group [http://www.seyfarth.com/SocialMedia].

By Kyllan B. Kershaw, Esq.

Seyfarth synopsis: The Board majority holds firm to its standard for evaluating employer work rules despite Member Miscimarra’s vigorous dissent advocating for a new, clearer standard that takes into account an employer’s legitimate business justifications.

Last Wednesday, a split Board panel (Hirozawa, McFerran) held in William Beaumont Hospital and Jeri Antilla, 363 NLRB No. 162,  that several work rules promulgated by a Michigan hospital violated the National Labor Relations Act.  The Board’s analysis of the hospital’s work rules arose out of a dispute regarding whether the hospital acted lawfully in firing two nurses for bullying behavior following an investigation into the death of a newborn at the hospital.  The Board unanimously upheld the Administrative Law Judge’s finding that the terminations were lawful, but Member Miscimarra, in a scathing partial dissent, disagreed with the Board panel’s finding that certain work rules were unlawful. He called for the Board to adopt a new standard that would allow the Board to consider the degree of adverse impact a given rule might have on protected activity and the legitimate justifications an employer may have for maintaining such a rule.

The Board panel, in affirming the administrative law judge’s finding that several of the rules violated the Act, reached even farther–declaring two additional rules to be unlawful under the Board’s Lutheran Heritage standard.  Specifically, the Board panel found the hospital’s language prohibiting conduct that “impedes harmonious interactions and relationships” and “negative or disparaging comments about the…professional capabilities of an employee or physician to employees, physicians, patients, or visitors” to be unlawful because such language “would reasonably be construed to prohibit expressions of concerns over working conditions.”

In his dissent, Member Miscimarra called for the Board to abandon its Lutheran Heritage standard, under which he claimed that “reasonable work requirements have become like Lord Voldemort in Harry Potter: they are ever-present but must not be identified by name.”  In doing so, Member Miscimarra identified numerous defects with the Lutheran Heritage “reasonably construe” standard, including that the standard: (1) ignores legitimate employer justifications of particular rules; (2) invalidates facially neutral work rules solely because they are ambiguous;  and (3) prohibits the Board from differentiating among industries or taking specific events into consideration that may justify the work rule, noting that the hospital setting should have factored into the analysis of the rules in this case.  Member Miscimarra commented that the standard has resulted in extensive confusion and litigation, arguing that the application of the standard does not permit one to understand the difference between many “lawful” and “unlawful” rules.    Member Miscimarra noted that the Board’s standard stems from a misguided belief that unless employers correctly anticipate and carve out every possible overlap with NLRA coverage, employees are best served by not having employment policies, rules, and handbooks, claiming that “in this respect, Lutheran Heritage requires perfection that literally has become the enemy of the good.”

Employer Takeaways

Although Member Miscimarra’s dissent may offer some solace to employers frustrated by the Board’s recent rulings in the context of employer policies and work rules, unfortunately, the Board majority has chosen not to pursue a clearer standard for evaluating employment policies, once again leaving employers seeking guidance as to what constitutes a lawful work rule with confusion instead of answers. While the Board’s intense focus on workplace rules lingers, employers should consult their labor lawyers to ensure their work rules can withstand the Board’s scrutiny and to determine whether such narrowly-tailored lawful rules actually further the employer’s legitimate business interests.

 

By Paul Galligan and Samuel Sverdlov

Employers scored a big victory in In re Trump Entertainment Resorts, a case of first impression in the Third Circuit, which held that a debtor-employer can terminate their obligations under an expired Collective Bargaining Agreement (CBA) and implement the terms of a final offer.

Background

By way of background, Trump Entertainment employs 1,467 unionized workers in the Trump Taj Mahal casino in Atlantic City, New Jersey, most of whom are represented by UNITE HERE Local 54. Although the Taj Mahal is one of the preeminent casinos in Atlantic City, it filed for Chapter 11 bankruptcy protection on September 9, 2014. Trump Entertainment made several proposals aimed at keeping the Taj Mahal afloat, but the union staunchly refused the terms and engaged in a corporate campaign communicating with the Taj Mahal’s customers who had scheduled conferences at the Casino to urge them to take their business elsewhere.

The CBA expired on September 26, 2014, and Trump Enterprises filed a motion pursuant to 11 U.S.C. § 1113, “seeking to reject the CBA and implement the terms of [Trump Enterprise’s] last proposal to the union.” Section 1113 allows a Chapter 11 debtor to ‘reject’ its CBAs under certain circumstances, with the Bankruptcy Court’s approval. If the Bankruptcy Court denied Trump Entertainment’s motion, then Trump Entertainment would have to maintain the “status quo” and continue the terms of the expired CBA until it bargained to a legal impasse with the Union, a potentially long drawn out process.

The Bankruptcy Court for the District of Delaware balanced the need for an expedited process by which debtors could restructure labor obligations and protections necessary for union employees, and held that § 1113 was applicable to both expired and unexpired CBA’s. (519 B.R. 76 (Bankr. D. Del. 2014)).  However, the Court noted that “the Union was not focusing its efforts on negotiating to reach agreement with Debtors.”  The Court held that  it had the authority to authorize Trump Enterprise “to modify the expired CBA and implement the terms of [its] proposal.” UNITE HERE Local 54 thereafter appealed the Bankruptcy Court’s decision to the Third Circuit.

Third Circuit Decision

The Third Circuit affirmed the finding of the Bankruptcy Court. The Circuit Court only considered “whether the Bankruptcy Court may grant a motion to reject an expired CBA under § 1113.” Trump Enterprise, in the opinion of the Court, illustrated the very essence of a § 1113 rejection of a CBA.  Trump Enterprises needed to reject the CBA in order to restructure their company, and if they were unable to do so, they would be forced to liquidate.  Furthermore, the Court held that Trump Enterprises was very willing and forthright in their efforts to bargain in good faith, while the Union “stalled the bargaining sessions engaged in picketing, and attempted to harm [Trump Enterprise’s] business.”  As, Judge Roth explained, “it is preferable to preserve jobs through a rejection of a CBA, as opposed to losing the positions permanently by requiring the debtor to comply with the continuing obligations set out by the CBA.”

Advise for Employers

In the wake of this precedential opinion, employers entertaining a Chapter 11 bankruptcy can explore a § 1113 motion to reject their obligations under an expired CBA.  However, employers must remember that “before the bankruptcy court will consider an application to reject, the debtor must make a proposal, provide relevant information, meet at reasonable times, and confer in good faith.”  In this respect, employers would do well to follow in the footsteps of Trump Entertainment Resorts, and engage the union proactively as Trump Enterprises did with UNITE HERE.

It is important to note that Bankruptcy Courts are divided on whether § 1113 permits debtors to reject CBAs and to what extent. For instance, in Hostess Brands, Inc., 477 B.R. 378 (S.D.N.Y. 2012), the court refused to relieve a debtor from maintaining its obligations under an expired CBA under similar circumstances. Therefore if you are considering filing a Chapter 11 bankruptcy, and you have outstanding CBA obligations, you should contact your local Seyfarth Shaw attorney to decide whether a § 1113 is an available option.

By Kevin A. Fritz and Craig B. Simonsen

iStock_000048141232_LargeWould your company’s employee handbook pass a National Labor Relations Board (NLRB) social media review and investigation?

The U.S. Chamber of Commerce highlighted some troubling notions in a report issued last week: “Theater of the Absurd: The NLRB Takes on the Employee Handbook” (Chamber Report). The Chamber Report notes that “through a series of decisions and official guidance, the National Labor Relations Board (NLRB) has undertaken a campaign to outlaw heretofore uncontroversial rules found in employee handbooks and in employers’ social media policies—rules that employers maintain for a variety of legitimate business reasons.”  When it comes to protecting concerted activity, the NLRB has been anything but consistent in its application of the law and subsequent decisions.

In the realm of social media policies alone, the NLRB’s General Counsel’s Office issues Advice Memos that detail the results of “investigations in dozens of social media cases.” The Advice Memos claim to show many cases where “some provisions of employers’ social media policies were found to be overly-broad” and unlawful.  But the Chamber Report disputes the NLRB findings, noting that “unfortunately, in recent years the NLRB has changed. Rather than serving as an impartial referee, it has become dominated by a decidedly pro-union majority. These activist Board members have disregarded the overarching objectives of the NLRA and disrupted the careful balance that the Board has traditionally sought.”

And, more recently the NLRB’s General Counsel’s Office released its guidance memorandum to “help employers” draft compliant handbooks: “Report of the General Counsel Concerning Employer Rules,” GC-15-04 (March 18, 2015). The guidance sets out that the NLRB considers a policy or rule as unlawfully interfering with employees’ rights under the NLRA where an employee would “reasonably construe” the policy or rule to prohibit protected activity.” The Chamber Report indicates that the guidance “goes on to provide examples of lawful and unlawful employer policies. Unfortunately, many of the examples provided confuse matters even more given the similarities between that which is legal and that which allegedly is not.”

Our readers may appreciate the complexity through a real life example: Consider an NLRB decision where a technician had been warned by his employer three times over a five-month period for violating safety rules. The technician was finally fired after being seen on a ladder working without protective headwear, safety glasses or gloves. In November 2012, the NLRB found that the employer had a legitimate reason for firing the technician, dismissing his claim that he had been retaliated against for union activity (Dish Network Corp., N.L.R.B. A.L.J., No. 16-CA-62433 (11/14/12). The Chamber Report notes that while it didn’t take issue with the NLRB’s core finding in this case, it observed that the Board then went a step further, finding unlawful three provisions of the employer’s employee handbook that “had nothing to do with the underlying case.”  The motivation behind the NLRB’s decision is certainly concerning.

As an employer, it is not easy to maneuverer in this “legal” space.  From the NLRB finding that policies prohibiting “negative comments about fellow team members” to those which subject one to disciplinary action for “disclosure of proprietary information” as being illegal, employers are right to feel challenged and perhaps even intimidated by the rampage an sporadic nature the NLRB has taken. Employee handbooks are an important source for you to communicate your company’s policies and procedures. Given this current state of uncertainty and “decidedly pro-union majority,” be sure that your company materials are up-to-date and able to withstand a government inspector’s review.

Those with questions or concerns about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of the Labor & Employee Relations, Social Media Practice Group, or Workplace Policies and Handbooks teams.

By Bradford L. Livingston, Esq.

On the eve of a new college football season, the referees at the National Labor Relations Board (NLRB) got it right on instant replay: they called off the game. In a ruling yesterday, the NLRB’s five Members unanimously declined to assert jurisdiction over Northwestern’s scholarship football athletes. There will be no union of college football players — at least for now.

In case you forgot the game being played during the 17 months since the NLRB Regional Director’s original decision that scholarship college football players are employees who may form a union under the National Labor Relations Act (NLRA), the facts are this: In early 2014 the College Athletes Players Association or CAPA, a union affiliated with The United Steelworkers, filed a petition seeking to represent Northwestern University’s scholarship football players. Following a hearing before Region 13 of the NLRB, on March 26, 2014, the Regional Director ordered a representation election, finding that it would “effectuate the purposes of the [National Labor Relations] Act to assert jurisdiction over scholarship athletes.” The NLRB conducted an election in April 2014 and impounded the ballots while Northwestern University appealed the Regional Director’s decision to the full NLRB. Following the filing of multiple briefs by both the parties and various amici curiae, the NLRB issued its ruling today. In this case, all 5 current members of the NLRB joined in the decision by outgoing member Harry Johnson, whose term expires on August 27.

While fans often disagree with both the referees’ and replay booth’s calls, this time the referees got it right. In earlier blog posts, College Football Unions: NLRB to Play the Game, Will the NLRB Tackle the NCAA?, College Football Unions: What Game Is Being Played?College Football Unions: Throw the Flag for a False Start, and in my testimony at a Congressional hearing on the issue, I noted various problems with a finding that college football players could be considered employees under the NLRA.

Although the referees got it right, they did so only by avoiding the central issue in the case. Rather than deciding whether or not scholarship athletes are employees under the NLRA, the Board found an astute and politically correct way for its three-Democrat Member majority to avoid antagonizing their friends in organized labor. Contrary to its Regional Director, the NLRB found that it “would not effectuate the policies of the Act” and therefore — as suggested in our original blog post — declined to asset jurisdiction over Northwestern’s scholarship athlete. In reaching its conclusion, the Board noted that college and professional sports are played not alone but against other teams. And at the professional level, all the teams and their players are typically covered by a common labor agreement. A single team with its own labor agreement would lead to an un-level playing field. Likewise, the NLRB noted that it can only assert jurisdiction over private universities, which represent only 17 of the 125 colleges and universities in the FBS or top level of college football. The vast majority of teams are public colleges and universities beyond the reach of the NLRA and NLRB. Rather than promoting uniformity and stability, the Board recognized that an inherent asymmetry would be created when different teams play by different rules. Therefore, the NLRB decided that a “no call” was the best call. Hedging its bets, however, the NLRB noted that the result might be different if circumstances changed or if a different petition were filed.

Like other instant replay decisions in college football, this decision cannot be appealed any further. Just as the Big Ten or SEC Commissioner cannot overturn referees’ decision on the field or from the instant replay booth, there is no court to which CAPA can now turn. Decisions of the NLRB in representation cases like this are final; so we will never know how Northwestern’s scholarship athletes voted. And while other courts will decide when (and fans can debate) whether college football players should be paid for participating in their sports under other laws and legal theories, it is now clear that college football players cannot unionize and bargain under the National Labor Relations Act (for the foreseeable future). So as we begin a new season of college football, let’s get set to enjoy the game on the gridiron rather than before the NLRB.

By: Tracy Billows

Although employers are not required by law to have employee handbooks, if an employer chooses to go down such a path, legal compliance and being current with latest trends is a must. A non-compliant employee handbook can be used in claims of discrimination, union grievances, and other employee-employer disputes. Does your employee handbook need to be updated? Test your knowledge of latest legal trends in employee handbooks.

True or False?

Employers should consider including a pregnancy accommodation policy in its handbook.

True. The Equal Employment Opportunity Commission issued Guidance in July, 2014 on pregnancy discrimination and related issues, including addressing accommodations of pregnant workers. Additionally, the issue of accommodating pregnant workers is on the U.S. Supreme Court’s agenda. A decision on this issue (Young v. UPS) is expected by the U.S. Supreme Court later this year. Regardless of the federal legal landscape, states and municipalities are passing pregnancy accommodation laws that require accommodation of pregnant workers, and in most cases provide greater rights and protections. Thus, employers need to review their employee handbooks for this issue.

True or False?

Non-union employers do not need to worry about the National Labor Relations Board guidance on Handbooks.

False. The National Labor Relations Act applies to all employers – union and non-union. The NLRB has been very active in challenging policies and handbooks of non-union employers, especially in the areas of Social Media, Employer Confidential Information and Rules of Conduct. All employers should be reviewing their handbooks in light of this guidance.

True or False?

There should be a carve out for the employment at will policy in any handbook that references the employer’s ability to change at any time any of the employer’s policies in the handbook.

True. It is best practice to include in any handbook a reference to an employer’s right to revise, modify or eliminate any policy at any time – except for the policy of at-will employment. An employer does not want to concede that a mere policy or handbook change can result in any changes to the at-will employment relationship that governs in most workplaces. It is important to maintain the at-will employment policy and relationship to prevent wrongful termination claims and breach of contract claims.

True or False?

We reviewed and revised our employee handbook in 2014 so we do not need to review again in 2015.

False. 2015 is shaping up to be a busy year in terms of employment law changes. The Department of Labor issued a final rule on same sex spouses and the Family Medical Leave Act.  Numerous states have paid sick leave laws taking effect in 2015. Pregnancy accommodation laws are continuing to be proposed and enacted. There are many other issues on the horizon and employers need to be paying attention to these developments.

How did you do? If you have any questions about this topic, please contact the author, who is also co-chair of Seyfarth’s Workplace Policies and Handbook Team, or your Seyfarth attorney.

By Charles F. Walters

This blog recently discussed the upswing in EEOC retaliation charges and what employers can and should do about this undeniable trend. A National Labor Relations Board (NLRB) case now before the D.C. Circuit Court of Appeals on appeal provides a powerful reminder that non-union employers must also be concerned about retaliating against employees for exercising their NLRA rights.

It’s no secret that more and more non-union employees having turned to the NLRB – and with plenty of success – for help when being terminated or subjected to other employer treatment with which they disagree. The current NLRB’s expansion of what constitutes “protected concerted” activity under the NLRA has made it much easier for employees to allege and ultimately prove they were disciplined for exercising their NLRA rights. In fact, from protecting employee criticism of their employers on social media, to striking down countless seemingly innocuous handbook policies, to prohibiting arbitration agreements with class action waivers, the NLRB has been an accommodating, cost-free forum for employees feeling aggrieved by their employer.

This phenomenon is evidenced by the NLRB decision earlier this year finding that Virginia-based Inova Health System violated the NLRA when firing a nurse because she engaged in protected concerted activity – some of which took place four years before her termination. The NLRB reached this result despite the employer terminating the nurse only after a detailed human resources investigation of multiple workplace hotline complaints revealed that she had created a hostile work environment, shared unwelcome details with colleagues regarding her sex life and regularly used unwelcome profanity at work. The NLRB also found that another nurse who engaged in protected concerted activity along with the terminated nurse later was unlawfully denied a promotion as a result this activity, while a second nurse was found to have been unlawfully suspended for her overly aggressive treatment of a human resources manager while engaged in protected concerted activity.

So, what should a non-union employer do in the face of this new reality?

First, employers must know the ever-changing contours of what constitutes protected concerted activity under the NLRA, which means keeping abreast of the regular NLRB decisions that establish these contours. Second, all managers involved in employee discipline and other policy enforcement – including human resources personnel – should be trained on the NLRA the same way they are trained on civil rights and other employment laws. Third, disciplinary decisions must be scoured for any employee protected concerted activity underlying, or even arguably underlying, the discipline. Fourth, employee handbooks and any other personnel policies should regularly be reviewed for NLRA compliance given that the mere existence of a policy that an employee reasonably believes prohibits NLRA-protected conduct is unlawful.

If you would like more information about this topic or preventative training options to guard against NLRA violations, then please contact the author or your Seyfarth attorney.