Category Archives: Labor Law

Quirky Question #206, NLRB


I discovered one of my employees announced on Facebook that our company is a horrible place to work and she is just “coasting” and waiting to be fired.  Normally, I would just fire her, but our CFO is worried that internet communications between employees in social media can be “protected.”    What is the recent law? Answer→

Another Social Media Report by the NLRB Offers Needed Guidance for Employer Policies

Another Social Media Report by the NLRB

The National Labor Relations Board released its second Social Media Report in January of this year providing the General Counsel’s analysis of 14 challenged employer social media policies.  The Board last week released another Report reviewing seven additional employer policies. The Board alleged that six of these policies interfered with employees’ rights under the National Labor Relations Act (NLRA), and found one policy to be lawful. While much of the new Report reiterates prior analysis, the Board significantly expands upon its views of employees’ rights to discuss confidential company and coworker information online. Most importantly, the Board expressly approves and fully quotes one particular social media policy, which may serve as a useful guide for employers to review or create their own policies. Answer→

Quirky Question # 186: Can Arbitration Agreements Ban Class Claims?


For many years, our company has required all employees to sign a contract agreeing to arbitrate any employment claims, including discrimination claims.  Last year we changed our form contract to make it clear that any arbitration only would cover the individual employee making the claim.  There would be no “class action” arbitrations or anything like that.  (We were told by another law firm that the Supreme Court had just ruled that this approach was legal.)

Now, we’ve got a terminated employee threatening to bring a class action against us.  His lawyer says our new arbitration contract violates the National Labor Relations Act and something called the Norris-Laguardia Act.  But, we aren’t even a union shop!  What’s going on here?  I thought the Supreme Court just said that we could ban class actions in our arbitration agreements. Answer→

Quirky Question # 177, Regulating Speech in Union Organizing Campaigns


I work for a company called Star Registered, Inc. We employ sales employees who perform door-to-door direct sales. Customers can register stars to their names (we copyright the name with the telescopic coordinates and provide a personalized certificate). We have learned that some of our employees would like to form a labor union, and are now wearing t-shirts during their field sales activities that read on the front “Registered Offender” and on the back “I offended Registered by trying to unionize.” We can prohibit these offensive t-shirts, right? Answer→

Happy Holidays From The NLRB: Your Carefully Crafted Social Media Policy May Amount To A Per Se Violation Of The National Labor Relations Act

Set forth below is the article from one of our partners regarding the recent NLRB Complaint, stemming from a posting on Facebook.

Happy Holidays from the NLRB

Depending on the study cited, as many as:

• 79% of people in the U.S. age 18 and older were on-line in some fashion as of May 2010
• Of those on-line adults, 61% used social networking sites (up from 46% of on-line adults just last year)

Source: PEW Internet and American Life Project

• Approximately one-third of U.S. companies have a social media policy (other surveys report more than one-half their respondents have such policies)

Source: Manpower Social Media Survey, January 2010

• More than one-half of U.S. companies block access to social media sites from work

Source: Robert Half Social Media Monitoring Tools Survey, October 2009

• As many as 15% of U.S. companies have disciplined employees over social media issues
• 8% of U.S. companies have reported discharging someone over social media issues (up from 4% in the same survey in 2009)

Source: Proofpoint Outbound E-mail and Data Loss Prevention, 2010

The ease of use and dissemination, the spontaneity of communications, the perceived anonymity of on-line personas – in other words, all the things that likely attract people to social media – also present real challenges for employers. Whereas before, employers had to concern themselves only with the occasional improper e-mail that might be seen by a handful of individuals, Facebook posts, Twitter feeds, and other on-line content can quickly “go viral” and be seen by tens or hundreds or thousands of people. With the stakes raised, employers are growing increasingly vigilant and decreasingly tolerant of careless social media behavior. As a result, both corporate policies and the law are struggling to keep pace with the social media age. Answer→

Granite Rock Co. vs. International Brotherhood of Teamsters, Arbitration Issues Arising from a Disputed Collective Bargaining Agreement

Granite Rock Co. v. International Brotherhood of Teamsters

On June 24, 2010, in the final labor and employment law decision of its 2009-10 term, the Supreme Court decided the Granite Rock Co. v. International Brotherhood of Teamsters case and resolved two important issues in federal labor law.  Granite Rock centered around a dispute over the formation of a collective bargaining agreement (“CBA”) between concrete and building materials company Granite Rock and a Teamsters local union.  The Court rejected the union’s effort to compel arbitration of the parties’ dispute over the CBA’s formation date, concluding that disputes over the existence of a contract must be resolved by the courts.  Additionally, the Court affirmed the dismissal of Granite Rock’s claim against the international union for tortious interference with the CBA. Answer→

New Process Steel LP v. NLRB, Supreme Court Rules On NLRB Composition

On June 17, 2010, a sharply divided United States Supreme Court resolved the case of New Process Steel LP v. NLRB. The highly anticipated decision resolved a Circuit split that had developed after the National Labor Relations Board, which normally has five members, spent 27 months issuing decisions as a two-member body. In a 5-4 decision, written by Justice Stevens and joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito, the Court held that while the National Labor Relations Act allows the five-member Board to delegate its powers to three members, and that two of those three members may constitute a quorum sufficient to exercise the Board’s powers, the Board has no authority to decide unfair labor practice and representation cases unless at least three of the Board’s five seats are filled.  The decision presumably invalidated hundreds of decisions reached since January 1, 2008.


Unionization of Home Based Employees, Quirky Question # 91

Quirky Question #91:

I own a company with a nationwide work force, and all of our employees work out of their homes.  I am hearing rumors that these employees may try to organize a union.  Is this possible?  Aren’t unions for employees working at a single factor or facility?  Once my employees are hired, we meet as a group only once a year.  For the rest of the year, in fact, virtually all of our communication is over e-mail.  If the rumors are true and they can try to form a union, what can I do to convince them? Answer→