Tag Archives: employee rights

You CAN Ask Your Employees To Be Happy! Federal Appeals Court Reins In National Labor Relations Board (NLRB)

Contributed by Beverly Alfon, August 17­, 2017

Labor LawMuch has been written and discussed about the National Labor Relations Board’s (NLRB) attack on handbook policies over the past several years. The NLRB has found what many consider to be run-of-the-mill, standard policies that have, for many years, raised no issues or controversy, to be violative of the National Labor Relations Act (NLRA).

Last year, the NLRB struck down various policies in a handbook issued by T-Mobile, including one that encouraged employees to be professional and maintain a “positive work environment” in T-Mobile USA, Inc. v. NLRB, No. 16-60284 (5th Cir. 2017). In its decision, the Board reasoned: “[w]e find that employees would reasonably construe the rule to restrict potentially controversial or contentious communications and discussions, including those protected by Section 7 of the [NLRA], out of fear that the [employer] would deem them to be inconsistent with a ‘positive work environment.’” T-Mobile appealed the NLRB’s decision to the U.S. Court of Appeals for the Fifth Circuit.

Specifically, T-Mobile challenged the Board’s determination that the following provisions from its employee handbook violated the NLRA because they discouraged unionizing or other concerted activity protected by the Act. Provision (1) encouraged employees to “maintain a positive work environment”; (2) prohibited “[a]rguing or fighting,” “failing to treat others with respect,” and “failing to demonstrate appropriate teamwork”; (3) prohibited all photography and audio or video recording in the workplace; and (4) prohibited access to electronic information by non-approved individuals.

On July 25, the Fifth Circuit held that the Board erred in finding that a reasonable employee would construe policies (1), (2), and (4) to prohibit protected activity. The Court reasoned:

In this case, where the record does not suggest that the rules have been applied in the context of union or collective activity, the ‘reasonable employee’ is a T-Mobile employee aware of his legal rights but who also interprets work rules as they apply to the everydayness of his job. The reasonable employee does not view every employer policy through the prism of the NLRA. Indeed, ‘[the Board] must not presume improper interference with employee rights.’

The Court did agree with the Board’s finding that a reasonable employee would construe policy (3) to prohibit protected activity. It reasoned that unlike the other policies such as the “workplace conduct” policy and “commitment –to-integrity” policy, the recording policy blanketedly forbids certain forms of clearly protected activity. For instance, it would prohibit an off-duty employee from taking a picture of a wage schedule. Notably, last month, the U.S. Court of Appeals for the Second Circuit upheld a similar NLRB decision on workplace recordings.

Bottom line: This federal appeals court decision in T-Mobile USA Inc. v. NLRB gives employers and their counsel additional basis for defending legitimate personnel policies in the face of numerous NLRB decisions issued over the past several years that have been viewed as an attempt to diminish management’s right to set basic employee standards in the workplace. However, it seems that blanket policies prohibiting workplace recordings continue to require careful wording and business justification.

Chipotle Decision Reminds Employers Once Again That Strict Social Media Policies Are Unlikely To Survive NLRB Scrutiny

Contributed by Steven Jados

A recent decision from a NLRB Administrative Law Judge (“ALJ”) serves as yet another reminder that most private sector employers must allow employees some leeway to make work-related complaints, especially on social media. The employer in the case, Chipotle Services LLC, operates Chipotle restaurants nationwide. As readers likely are aware, Chipotle has received a great deal of negative press in recent months, but this recent decision was unrelated to food safety or illness issues.

Instead, this case arose after Chipotle management confronted an employee who used the social networking application, Twitter, to complain of low wages and being required to work on days when heavy snow fell and public transportation was not operating.  The employee also tweeted that Chipotle, unlike its competitor, Qdoba, charged customers for guacamole.

Social MediaManagement met with the tweeting employee, handed him a copy of the company’s social media policy, and asked him to delete his tweets about Chipotle because they violated the policy.  Further showing that Chipotle cannot catch a break, the policy document that management gave the employee was not even Chipotle’s current social media policy—but that did not matter to the NLRB because Chipotle relied on the outdated policy when it asked the employee to delete his tweets.

Two particular provisions in the social media policy drew the NLRB’s ire. Those provisions prohibited:  (1) spreading “incomplete, confidential, or inaccurate information;” and (2) “making disparaging, false, misleading or discriminatory statements about or relating to Chipotle . . . .”

The ALJ concluded that prohibiting false, misleading, incomplete, or inaccurate statements was improper as prior NLRB decisions required more than a false statement for an employee to lose the protection of the National Labor Relations Act (“NLRA”).  Under existing precedent, in order to lose the protection of the NLRA, inaccurate statements must be combined with a malicious motive.

The ALJ also was troubled by the prohibition on disclosing confidential information, because the term “confidential” was not defined in the policy and, therefore (according to the ALJ) could have been broadly construed by employees to include NLRA-protected activity.  Prior NLRB decisions have struck down overly broad confidentiality provisions that could be construed to bar employees from discussing, for instance, their wage rates.  Similarly, the ALJ determined that the prohibition on “disparaging” statements was also too vague, and thus could be interpreted to bar protected activity.  Again, as NLRB precedent has shown, insulting one’s employer and supervisor often can be protected by the NLRA.

Bearing all of this in mind, it is critical that employers realize that employees do have certain rights to bite the hand that feeds them—and that efforts to enforce overly strict limitations on employee comments have the possibility to create more harm than the original comments ever could have.  In this regard, employers must also recognize that the NLRA covers most private sector employers with multiple employees, regardless of whether the employer’s employees are union members.  As such, employers must be mindful of the rights that exists under the NLRA, and should consult with experienced legal counsel when implementing and enforcing employee social media policies.

California Expands Employees’ Access to Personnel Files

Contributed by Paul Jaquez

On September 30, 2012, Governor Jerry Brown signed Assembly Bill (A.B.) 2674, which amplifies the rights of employees vis-à-vis their personnel files.  Beginning on January 1, 2013, employers in California will be required to permit employees – both current and former – the right to inspect and copy personnel files and records.  The law has two important modifications.  First, the law now imparts the same rights to former employees to access their personnel files as that currently maintained by current employees.  Second, while employees had previously been permitted to inspect their personnel files, employees had not been entitled to receive an actual copy of the file, but rather, only receive copies of the actual documents that the employee had signed.  Now, however, current and former employees, or their designated representatives, can receive a copy of the contents of their entire personnel file, provided they pay the cost of copying.

Employer Compliance

  • Employers must develop, and provide upon request, a written form which permits an employee to request access and/or copy their personnel file.
  • Employers must produce such a copy within 30 calendar days of the written request.
  • Failure to comply can result in the employers being fined $750 (plus attorneys’ fees if necessary, which is awarded to the employee.

Best Practices Going-Forward

  • Develop a form that complies with the written request for inspection and copying the personnel file.
  • Review that only the required documents are properly kept in personnel files.

  • Documents employees are entitled to include the following:
    • Application for employment;
    • Payroll authorization form;
    • Notices of commendation, warning, discipline, and/or termination;
    • Notices of layoff, leave of absence, and vacation;
    • Notices of wage attachment or garnishment;
    • Education and training notices and records;
    • Performance appraisals/reviews; and
    • Attendance records.
  • Documents employees are NOT entitled to include the following:
    • Records relating to the investigation of a possible criminal offense;
    • Letters of reference;
    • Ratings, reports, or records that were obtained prior to employment, prepared by identifiable examination committee members, or obtained in connection with a promotional examination.