By David S. Baffa, Noah A. Finkel, and Joseph S. Turner

Seyfarth Synopsis: Congress has once again proposed legislation that would seek to ban mandatory workplace arbitration of employment claims, despite a string of United States Supreme Court decisions upholding arbitration and class/collective action waivers as a lawful and appropriate mechanism to

Co-authored by Noah A. Finkel, David S. Baffa, and Andrew L. Scroggins

Seyfarth Synopsis: Following oral argument, employers should be cautiously optimistic that the Supreme Court will allow mandatory arbitration programs containing waivers of the ability to bring collective and class actions.

In Monday’s oral argument, in one of the most significant

By Michael W. Stevens

Seyfarth Synopsis:  With Justice Neil Gorsuch joining the Supreme Court in April, and the apparent re-emergence of a 5-4 split, we expect to see the Court issue more expansive opinions and be less reticent to grant certiorari.  The addition of Justice Neil Gorsuch is likely to have particular impact in the

By Howard Wexler, Esq. and Samuel Sverdlov, Esq.

Seyfarth Synopsis: An Administrative Law Judge held that an employer’s policy of prohibiting employees from conducting personal business at work, along with its social media and solicitation/distribution policies, violated the National Labor Relations Act (“NLRA”).

In Casino Pauma, the NLRB’s General Counsel (“GC”) alleged that four

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

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

By: Meredith  C.  Bailey, Cassandra Hanley Carroll and Christine Hendrickson

Today, the Office of Federal Contract Compliance Programs (“OFCCP”) issued proposed regulations that would limit covered federal contractors’ ability to take adverse action against applicants and employees who discuss compensation.  The proposed rule is available here.

The protections afforded by the proposed regulations

By Uma Chandrasekaran and Annette Kim

Employers may need to tweak their workplace investigation policies in order keep complaints of twerking out of the workplace. Recent decisions and guidance from the National Labor Relations Board (“NLRB”) and the Equal Employment Opportunity Commission (“EEOC”) have spotlighted the need for employers to develop  narrow policies while maintaining flexibility to address workplace-related concerns, including harassment on social media. 

As we have blogged before here and here, the NLRB has actively scrutinized and stricken down employer social media policies as being overbroad and having a “chilling” effect on employees’ rights to engage in activity protected by Section 7 of the National Labor Relations Act (“NLRA”). Despite the NLRB’s decisions, employers cannot afford to turn a blind eye to their employees’ social media activities altogether, because social media harassment can, in certain circumstances, support Title VII harassment claims.

Notably, the First, Second, Seventh, Eighth and Ninth federal circuit courts currently allow an employee’s “off-the-clock” social media conduct to be considered as part of the “totality of the circumstances” to show a hostile work environment harassment claim under Title VII. 
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By: Paul Galligan

What rocks does an employer need to look under when faced with employee posting bad things about it on a social media website?  Rock one is more like the pebble in your shoe, the National Labor Relations Board (the “NLRB”). While the NLRB is usually known for regulating affairs between unions, employers, and union represented employees, in the last few years it has taken the lead role as protector of the hostile employee venting on Facebook, Twitter or any other social media outlet.  Most employers whose employees are not represented by a union have never dealt with the NLRB.  Discipline an employee for posting unkind or disloyal things about management or corporate culture and you will probably have to deal with the NLRB, the new champion of the blogosphere. 

Whether employees are union represented or not, the NLRB believes that when employees post comments on a social media site about their employer, they may be engaging in “protected concerted activity.”  The NLRB views the posting as “concerted” activity when it concerns working conditions and the activity is for the benefit of two or more workers, not just the employee doing the posting.  It is “protected” activity unless the employee’s post crosses a vague (some would say nebulous and still undefined) line into griping or personal rants, and becomes unprotected.    
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