Insights for Management
By: Bart A. Lazar
A company faced with a security breach has a lengthy “to do” list, things to accomplish with respect to its incident response plan. It must, among other things, determine the root cause of the vulnerability or breach, investigate and eliminate the vulnerability or breach, determine the full nature and extent of the breach, determine who to
By: Paul Kehoe
As the dust settles on the 2014 midterm elections, Republicans have expanded their lead and the House of Representatives and taken control of the Senate with at least 52 and possibly 54 seats. For employers, this could signal many positive developments in oversight, legislation, and appropriations over the coming year, but the election results will not end…
Continue Reading The Midterm Election Results And How They Impact Employers
Employers know that the National Labor Relations Board may scrutinize their policies to determine if they violate the National Labor Relations Act (the “Act”) – and specifically, Section 7’s protections for “concerted activity.”
When searching for clear guidance on what standards to follow, employers soon find that the NLRB’s most recent fact sheet only addressed cases…
Continue Reading #Trending Now — NLRB and Social Media Policy Guidance
Employees will not make “negative comments about our fellow team members” and will not “engage in or listen to negativity or gossip.”[1]
Company prohibits “discourteous or inappropriate attitude or behavior to passengers, other employees or members of the public,” and “disorderly conduct during working hours.”[2]
“Gossip is not tolerated at [the Company]. Employees that…
By Kerry M. Mohan and Craig B. Simonsen
In a remarkable announcement, OSHA Administrator Dr. David Michaels has just issued a Decision on Referring Untimely 11(c) Complainants to the National Labor Relations Board (Decision), OM-14-60 (May 21, 2014).
This announcement comes just weeks after Dr. Michaels testified at a hearing before the Senate Subcommittee on Employment & Workplace Safety.
Continue Reading OSHA Decision to Refer “Untimely 11(c) Complaints” to the NLRB
By: Carlos Lopez
Companies cannot have every employee with a Twitter account spreading (mis)information about their business, products or services to hundreds or thousands of followers, but the National Labor Relations Board is sending mixed signals about what, if anything, employers can do about it.
Good News: While the Board has been a relentless foe of almost all social media…
Continue Reading The Opinions Expressed In This Post Are My Own And Not Necessarily Those Of My Employer: Disclaimers And The NLRB’s Continuing (And Confusing) Assault On Employer Social Media Policies
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.
Continue Reading Blurred Lines: Social Media and Confidentiality in Workplace Investigations
By: Sara Eber
Following a term with many employment-related decisions—and with outcomes emphatically pro-employer—the United States Supreme Court will hear the first oral arguments of its 2013-2014 term, which are currently scheduled to begin on October 7, 2013.
The docket will again feature several cases with significant implications for employers, including issues affecting the Employee Retirement Income Security Act, the…
Continue Reading Continuing the Pro-Employer Trend? What to Watch In the Supreme Court’s 2013/2014 Term
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.
Continue Reading Not Just a Social Call — Basic Considerations for Employers Dealing with the Hostile Employee Posting About You, Your Company and Your Employees on Social Media
