Category Archives: National Labor Relations Act

Tips For Drafting Severance Agreements To Avoid Scrutiny From The EEOC and NLRB

Contributed by Debra Mastrian

The EEOC and NLRB continue to actively review severance agreements, in addition to social media policies and employee handbooks. The provisions that draw the most scrutiny are waivers or releases of claims, confidentiality and non-disparagement provisions.

18108277_sAny attempt to interfere with an employee’s right to file an administrative charge, communicate with the agencies, or participate in agency investigations, are troublesome. Remember that while an employee can waive or release an EEOC or NLRA claim, the employee can still file a charge of discrimination or an unfair labor practice charge. You can, however, require that the employee waive any right to individual relief in the event a charge is filed. You should always include appropriate carve out language and the language should not be limited to just the EEOC and NLRB, but should apply to any other federal, state or local agency charged with enforcement of any laws. You should consider using a separate, bold paragraph (omnibus carve out) and then refer to that carve out paragraph in each provision that may restrict the employee’s rights. Do not condition payment of the severance on a withdrawal of a pending agency charge, but instead require the employee to complete and return an appropriate agency withdrawal form and notify the agency of the agreement.

Confidentiality and non-disparagement provisions can run afoul of Section 7 and 8 of the National Labor Relations Act (NLRA). The NLRB is concerned with broad provisions that may prohibit employees from discussing the terms and conditions of their employment or saying anything about their employer. Any provision that requires an employee to keep company information confidential should be carefully defined and limited to trade secrets and other non-public proprietary business information and should not be so broad as to cover all company and employee information. A provision that requires the employee to keep the severance agreement confidential should be limited to disclosure of the severance payment or specific terms, rather than the entire agreement. A non-disparagement provision that applies to statements about an employer should be limited to false statements that are willfully, maliciously or knowingly made. You can still prevent an employee from disparaging customers, suppliers and vendors.

You should add a savings provision that nothing in the severance agreement is intended to prohibit the employee from exercising his or her rights under the NLRA.

Employers should have their severance agreements reviewed on a regular basis to ensure they are current.

“No, You Can’t Wear That”—D.C. Circuit Sets Important Limitation On Union Apparel in the Workplace

Contributed by Steven Jados

In the opening sentence of its recent decision, Southern New England Telephone Co. v. NLRB, the federal D.C. Circuit Court of Appeals stated: “Common sense sometimes matters in resolving legal disputes.” If only that were always true in labor disputes.

The legal dispute in this matter centered on the fact that the company prohibited publicly visible employees—those who had direct contact with customers or the public—from wearing union t-shirts that said “Inmate” on the front and “Prisoner of AT$T” on the back. These shirts were part of a campaign by the union representing certain company employees to apply bargaining pressure in the midst of contentious contract negotiations. Notably, the company did allow the shirts to be worn by employees who were not publicly visible.

Common sense says it is less-than-ideal to have your customers and prospects think that you imprison your employees—metaphorically or otherwise.

43200054_sGenerally speaking, however, the National Labor Relations Act protects union members’ rights to wear clothing with union logos and slogans in the workplace. In light of the NLRB’s efforts to expand its reach into non-union workplaces, that same protection conceivably extends to articles of clothing linked to concerted activities relating to wages and working conditions, regardless of whether the clothing is worn by union or non-union employees.

Relying on that generalized protection, prior to this matter reaching the D.C. Circuit, the NLRB ruled that the company acted unlawfully by prohibiting employees from wearing the “prisoner” shirts, and suspending employees who refused to comply with the prohibition.

The D.C. Circuit, however, cited the “special circumstances” exception to the generalized protection favoring union apparel, and stated that this exception allows employers to stop employees “from displaying messages on the job that the company reasonably believes may harm its relationship with its customers or its public image.” In applying that exception to the union’s “prisoner” shirts, the court reinforced the strength and significance of an employer’s concerns of potential damage to customer relationships. Such concerns may outweigh employees’ rights on the subject of union apparel.

All of that said, the bottom line here is that companies do have some rights when it comes to limiting union apparel in the workplace. However, companies must tread carefully when attempting to impose apparel rules because the “special circumstances” exemption will not apply in every case. Common sense eventually prevailed in this matter, but that happened only after a lengthy legal battle that lasted more than five years.

For Every Employer Action, There Is a NLRB Reaction: Board Expands Scope of Protected Concerted Activity Again

Contributed by Beverly Alfon

In a recent decision, Central States Southeast and Southwest Areas, Health & Welfare and Pension Funds, 362 NLRB No. 155 (Aug. 4, 2015), the National Labor Relations Board (NLRB) held that an employee’s posting of a written warning at his cubicle was protected, concerted activity. The employee, Frederick Allen Moss, received the written warning from his supervisor for refusing to stop using his electronic tablet during a work meeting. In response, Moss laminated a copy of it and posted it next to his computer so that it was visible to anyone who entered his cubicle or stood at the entrance of his cubicle.

During a grievance meeting between management and Moss’ union, the supervisor complained that Moss was being disrespectful and insubordinate. The director of Moss’ department (the supervisor’s boss) told Moss that if he did not remove the posting, he would suspend Moss for three days. Moss took down the posting after the union advised him to do so. However, the director’s threat landed the employer before the NLRB.

The administrative law judge who heard the case found the employer’s threat to be an “overreaction” – but not any violation of the National Labor Relations Act. He found no evidence that Moss sought the support of other employees in the grievance process or that his posting advanced his cause in the grievance process. He found no evidence that Moss was seeking the support of other employees because they wanted to be able to use their electronic devices freely while at work or to protest unfair discipline in general. He found no common cause to bring Moss’ conduct under the protection of protected, concerted activity. Nonetheless, the Board in Washington D.C. reversed the ALJ and found violations of the Act.

9637576_sThe Board reasoned that the posting was protected because it was related to other means of communicating with other employees about discipline. Without reasoning, however, the Board dismissed the uncontested fact that Moss and the employees continued to openly discuss the written warning before and after the posting. The Board rejected the employer’s argument that it had a legitimate business justification to “remov[e] open displays of insubordination because such displays are disruptive and undermine management’s authority,” concluding that the employer had no factual basis for deeming the posting to be insubordinate.

Notably, the Board also found that the direction for Moss to remove the posting amounted to an unlawful work “rule” because it was communicated in the presence union stewards who could reasonably interpret that direction as a rule against any discussion of discipline through the physical posting of the discipline.

Bottom line:  Whether or not you have a unionized workforce, this decision serves as a reminder that when an employee responds to discipline – comparative choices for any employer reaction should be carefully evaluated in light of the real potential for substantial and expensive litigation before the NLRB. Also, if you have not done so already, train your managers and supervisors regarding the NLRB’s increased scrutiny of employer work rules.