New NLRB General Counsel Signals Enforcement Changes

The United States Senate confirmed Peter Robb as the new General Counsel to the National Labor Relations Board on November 8, 2017. On December 1, 2017, Mr. Robb issued a memorandum to the NLRB regional offices that required those contemplating enforcement actions to seek advice before proceeding. The categories for which advice must be sought are (1) cases over the last eight years that overruled precedent and involved one or more dissents on the Board, (2) cases involving issues that the Board has not decided, and (3) other cases that region officials believe will be of importance to the General Counsel. The requirement that enforcement authorities seek advice in such cases suggests that the General Counsel may be contemplating a change in enforcement policy on those issues.

The memorandum identified several examples of the kinds of issues that would require seeking advice, among them the following:

Inappropriate Social Media Postings. In Pier Sixty, LLC, 362 N.RB No. 59 (Mar. 31, 2015), the Board ruled that a catering service company unlawfully discharged an employee for posting a vulgarity-filled comment to Facebook about a member of management, knowing that his coworkers who were Facebook friends would be able to read the comment. The posting, although its language was "distasteful," constituted concerted activity protected under section 8 of the National Labor Relations Act.

Employee Handbook Conduct Provisions. In Casino San Pablo, 361 NLRB No. 148 (Dec. 16, 2014), the Board ruled that a handbook rule barring "disrespectful conduct" was too broad, and could be interpreted by employees in a manner that would discourage them from exercising their rights under section 7 of the National Labor Relations Act to engage in collective activity.

Joint Employer Status. In Browning-Ferris Industries of California, Inc., 362 NRLB No. 186 (Aug. 27, 2015), the Board revised its standard for determining whether an employer had joint employer status. It ruled that it would find two or more entities to be joint employers if they are both employers within the meaning of the common law, and if they share or codetermine matters governing the essential terms and conditions of employment. In that case BFI relied on workers supplied by an independent company to sort streams of material into categories at BFI's recycling plant. Because BFI had control over who the independent company could hire, barred the company from paying its workers more than BFI paid its employees for comparable work, and provided some day-to-day supervision of the independent company's workers, it was deemed a joint employer. In a notable application of this standard, several NLRB regions have brought complaints against McDonald's, alleging that it is a joint employer with its independent franchisees. Read the NLRB press release on the complaints against McDonald's.

Update: On December 14, 2017, the Board overturned the Browning-Ferris standard in Hy-Brand Industrial Contractors, Ltd and Brandt Construction, Co., 365 NLRB No. 156. Two new appointees to the Board joined one of the Browning-Ferris dissenters to announce a "return" to the joint liability principles applied before Browning-Ferris, which the decision described as "requir[ing] direct control over one or more essential terms and conditions of employment to constitute an entity the joint employer of another entity’s employees."

Other examples are provided in the full text of the memorandum, which is available here on the NLRB website.

California Employment Law Changes for 2013

California State Capitol, Sacramento

The Legislature and Governor Brown have completed their law-making activities for the 2011-2012 regular legislative session. The following laws that affect employers will become effective January 1, 2013:

Social media: AB 1844 bars employers from requiring or requesting an employee or applicant for employment to disclose a user name or password for the purpose of accessing personal social media, to access personal social media in the presence of the employer, or to divulge any personal social media. It also prohibits retaliation for not complying with a request or demand by the employer that violates the statute. There are exceptions for requests to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, and for requiring or requesting an employee to disclose a user name, password, or other method for the purpose of accessing an employer-issued electronic device. The provisions are codified in new Labor Code section 980.

Elimination of the Fair Employment and Housing Commission: SB 1038 eliminates the Fair Employment and Housing Commission as part of a broad effort to eliminate duplication in state government. It transfers the duties of the Commission to the existing Department of Fair Employment and Housing and to a newly created Fair Employment and Housing Council. It also expands specified powers of the DFEH related to complaints, mediations, and prosecutions, and provides mandatory dispute resolution at no cost.

Accommodation of religious dress and grooming practices: AB 1964 amends the Fair Employment and Housing Act's definition of religious practices that employers are required to reasonably accommodate to include religious dress and grooming practices. "Religious dress practice" shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed. "Religious grooming practice" shall be construed broadly to include all forms of head, facial, and body hair that are part of the observance by an individual of his or her religious creed. An accommodation that would require that person to be segregated from the public or other employees is not a reasonable accommodation. No accommodation is required if it would violate the FEHA or other laws prohibiting discrimination or protecting civil rights.

Further workers compensation system reform: SB 863 amends various provisions of the Workers Compensation Act in the hopes of eliminating waste and improving efficiency. A press release from the Governor's Office described the changes and hoped for savings.

Breastfeeding: AB 2386 amends the FEHA's definition of "sex" to include breastfeeding or medical conditions related to breastfeeding. The effect is to make it unlawful for an employer to discriminate or harass an employee because she is breastfeeding or has medical conditions related to breastfeeding.

Inspecting employment records: AB 2674 requires an employer to maintain personnel records relating to the employee's performance or to any grievance concerning the employee for at least three years, and to provide a current or former employee, or his or her representative, an opportunity to inspect and receive a copy of those records within 30 days of receipt of a written request, except during the pendency of a lawsuit filed by the employee or former employer relating to a personnel matter. An employer need not comply with more than 50 requests for a copy of employee personnel records from an employee representative in one calendar month. The new requirements do apply to an employee covered by a valid collective bargaining agreement if the agreement provides, among other things, for a procedure for inspection and copying of personnel records. In the event of a violation a current or former employee may recover a penalty of $750, and obtain injunctive relief and attorney's fees.

False Claims Act: AB 2492 strengthens the California False Claims Act, which is a tool for fighting fraud and abuse by government contractors, and will enable the state to continue receiving millions of dollars in federal incentive awards for recovering Medi-Cal false billings.

Why Does the NLRB Get Involved in Non-Union Workplaces?

Although the National Labor Relations Board spends much of its time dealing with union vs. management issues, recent publicity about its rulings on social media in the workplace have reminded us that its jurisdiction extends into non-union environments. This post explains the source and contours of that jurisdiction.

The NLRB exercises jurisdiction over all private employers who participate in a minimum level of interstate commerce, except those who employ only agricultural laborers. The Board's Jurisdictional Standards page explains the standards. The National Labor Relations Act excludes all government employees from the Board's jurisdiction.

Section 7 of the NLRA (29 U.S.C. section 157) protects employees' right "to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."The right extends to those who are not union members and to workplaces with no union presence. To be protected under Section 7, the activity (1) must involve two or more employees acting together or a single employee acting on behalf of others (2) must benefit employees as a group and not just amount to a personal grievance, and (3) must not be malicious, reckless or otherwise unlawful. The NLRB finds the right important enough that it launched a website in June 2012 that is specifically devoted to the protection of concerted activity.

Here are some of the ways in which Section 7 has been held to protect employees from adverse action by their employers:

Social Media. Several decisions have taken employers to task for disciplining or firing employees based on comments posted on Facebook and other social media. The Board's General Counsel issued a report in May 2012 that distilled the state of the law in this area. The most recent Board decision on the subject found that a Chicago car dealer did not violate Section 7 rights when it fired a sales person for posting photos on his Facebook page because the action was not concerted. Karl Knauz Motors, Inc., Case 13–CA–046452 (Sep. 28, 2012).

Wage Discussions. Section 7 gives employees the right to discuss their wages and other terms and conditions of employment. Confidentiality policies that prohibit employees from disclosing such information are not permitted. For an example of a confidentiality policy that drew NLRB enforcement action, see Northeastern Land Services, Ltd., 560 F.3d 36 (1st Cir. (2009).

Civility Policies. A policy that bars employees from treating each other in an uncivil manner may chill Section 7 rights. For example, in KSL Claremont Resort, Inc., 344 N.L.R.B. No. 105 (2005), the Board held that a policy prohibiting "negative conversations" about associates or managers was unlawful, because employees could reasonably construe the policy to bar them from discussing with their coworkers complaints about their managers that affect working conditions, thereby causing employees to refrain from engaging in protected activities.

Social Media In The Workplace

Social media (Facebook, Twitter, LinkIn, the new Google+ and many other similar services) can provide welcome exposure for businesses and their employees (, but also pose risks. While the owner of a number of vacation cottages in Nova Scotia was able to book all her cottages with the help of Facebook, Domino's Pizza faced a public relations disaster in 2009 when two of its employees posted a YouTube video of employees violating health standards. A New Jersey appellate court ruled that an employer could be held liable for the damage caused by an employee who uploaded pornographic pictures of his wife's 10-year old daughter from an earlier marriage. Doe v. XYZ Corp., 887 A.2d 1156 (2005). As discussed in an earlier post, the National Labor Relations Board has ruled it an unfair labor practice for employers to discipline employees for communicating their unhappiness with their working conditions on Facebook.

What should an employer do to navigate successfully between the Scylla of a large award to someone damaged by employee use of social media and the Charybdis of an equally large award for invading employee privacy? Here are some suggestions:

1. Develop a written social media policy. This is a must. Take the time to think through what uses of social media at your workplace are appropriate, and have all employees acknowledge the policy in writing. For a list of over 100 examples, visit this page, at socialmediatoday.com
2. Consider banning all access to social media at your workplace. In addition to the liability risks mentioned above, social media are a significant drain on productivity. A 2010 survey found that employees spend more than an hour a day on social media, primarily for personal reasons.
3. If you permit use of social media from the workplace, make sure that the social media policy explains that inappropriate content may not be posted, and that use of the company's equipment to access social media may be subject to monitoring by the company.
4. Do not use searches of social media sites to make hiring decisions. Such searches may well turn up personal characteristics (such as religion, national origin or sexual orientation) that should not be part of the hiring process. The information may also be unreliable. If you need to look into a potential employee's background, use an established provider to do so.
5. Be careful when monitoring social media postings by employees. Using surreptitious means to access a private site can subject the employer to invasion of privacy of liability as the owner of the Houston's Restaurant chain found out in federal court in New Jersey. California prohibits making adverse employment decisions based on political activities (Labor Code sections 1101 and 1102) or lawful conduct while off-duty (Labor Code sections 96 and 98.6).