RECENT LEGAL DEVELOPMENTS IN
LABOR LAW
2015
Gerard Morales
(602) 382-6362
800-322-0430
©2015
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Snell&&Wilmer
Wilmer
I. NLRB-Current Status
• General NLRB trends:
(a) assert itself in a predominately nonunion
private sector;
(b) make it easier for unions to win elections
(Micro units – Macy’s, Inc., 361 NLRB No. 163 (Jan. 7,
2015) ambush elections – new rules take effect 4/14/15,
unless enjoined);
(c) New Industries
• Indian casinos
• University faculties and athletes
• Religious schools
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II. Employee Handbooks Communication/Confidentiality/
Courteous Behavior Rules
• Rules or policies that prohibit employees from sharing
information or discussing discipline decisions or internal
workplace investigations are unlawful, unless the employer
can demonstrate a legitimate business need which
outweighs the employees’ right to communicate regarding
terms and conditions of employment (e.g., need to protect
witnesses, danger that evidence may be destroyed, etc.)
(internal investigations - Banner Estrella Medical Center,
358 NLRB 93 (2012); Discipline decisions – Phillips
Electronics, 361 NLRB No. 16 (2014)).
• Cannot have a one-size-fits-all approach.
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II. Employee Handbooks – Communication/
Confidentiality/Courteous Behavior Rules,
cont.
• One ALJ has found such policies unlawful even if
they only recommend that employees refrain
from discussing internal investigations. The
Boeing Co., NLRB ALJ No. 19-CA-089374 (July 26,
2013).
• Rules or policies that prohibit employees from
disclosing or discussing wages or other terms and
conditions of employment with other employees
or third parties are unlawful. Battle’s
Transportation, 362 NLRB No. 17 (2015); Design
Technology, 359 NLRB No. 96 (2013).
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II. Employee Handbooks - Communication/
Confidentiality/Courteous Behavior Rules,
cont.
• Rules or policies that prohibit disclosure or discussion of
“company information,” defined as “non-public company
information” (e.g., financial data, strategy plans, business
information, customer identities, personnel records) are
unlawful. Such policies restrict the employees’
communications with respect to terms and conditions of
employment and chill their statutory right to engage in
concerted activity. Battle’s, supra; Fresh & Easy, 361 NLRB
#8 (2014); Lily Transportation, 01-CA-108618 (ALJ 4/22/14).
• Rules or policies that prohibit workplace “incivility” or
“inappropriate behavior” or require “courteous” behavior
are found overbroad and unlawful. Pier Sixty, infra; Plaza
Auto, 360 NLRB No. 117 (2014); Hitachi Capital, 361 NLRB
No. 19 (2014).
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II. Employee Handbooks - Communication/
Confidentiality/Courteous Behavior Rules,
cont.
• No gossip policies that define gossip as:
“talking about a persons’ personal life when they are
not present; talking about a person’s professional life
without his/her supervisor present; making negative,
or untrue, or disparaging comments or criticism of
another person; and creating, sharing, or repeating
information that can injury a person’s reputation, a
rumor about another person, or a rumor that is
overheard or hearsay,”
are unlawful. Such policies restrict employees from
discussing terms and conditions of employment and chill
their right to engage in concerted activities. Laurus
Technical Institute, NLRB ALJ No. 10-CA-093934 (12/11/13).
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II. Employee Handbooks - Communication/
Confidentiality/Courteous Behavior Rules,
cont.
• In drafting communication/confidentiality/
courteous behavior rules, employers should
avoid broad and general prohibitions.
Employers must define the terms and make
sure to specifically exclude discussions
regarding hours and working conditions from
the prohibition.
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III. Employee Handbooks - Social
Media
• Does the rule or policy reasonably tend to chill employees in their
right to engage in “concerted activities.” Lafayette Park, 326 NLRB
924 (1998); Lutheran Heritage, 343 NLRB 646 (2004).
(1) Rules that explicitly restrict right to engage in concerted
activities, Lily Transportation, 01-CA-108618 (ALJ 4/22/14);
(2) Rules that do not explicitly restrict said right but which
employees could reasonably construe as restricting said
activities, Triple Play, 361 NLRB No. 31 (2014); Durham School,
360 NLRB No. 85 (2014);
(3) Rules that do not explicitly restrain said right but which are
applied to restrict concerted or union activities, see, Durham
School, supra.
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III. Employee Handbooks - Social
Media, cont.
• Rules or policies that prohibit employees from making
disparaging or defamatory comments about the
company, its employees, officers, customers and/or its
products and services are overbroad and therefore
unlawful. Such policies chill employees’ right to
engage in concerted activities. Pier Sixty, 362 NLRB No.
59 (3/31/15) (the Board held that an employee’s
posting in his personal Facebook page with respect to
his supervisor: “Bob is such a nasty M.F. F. his mother
and entire F. family . . .” was not so egregious as to
exceed the Act’s protection. The fact that his message
was visible to co-workers and others makes no
difference in the Board’s view); Durham School, supra.
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IV. Employee Handbooks – Social
Media, cont.
• Rules or policies that prohibit employees from
contacting the media or law enforcement
agencies or that prohibit employees from
engaging in public communications regarding
their employer are similarly unlawful for the
same reason. Dish Network , 359 NLRB No.
108 (2013).
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IV. Joint Employers
EXPAND REACH TO THIRD PARTIES THROUGH JOINT
EMPLOYER CONCEPT
Test now is whether putative employer imposes its own
operational requirements and monitors and retains
effective control “Direct Control”
• Proposed change is that any entity that “wields
sufficient influence over the working conditions of the
direct employer’s employees” is a joint employer
• This is called the Industrial Realities Test. See, GC Brief
to Board in Browning-Ferris case, 32-RC-109684.
Realistic control through economic relationship.
• Overrule 30 year precedent of “direct control.” TLI, 271
NLRB 798 (1984)
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IV. Joint Employers, cont.
Factors General Counsel proposes to determine if
putative employer is “Joint Employer”
Do Putative Employers:
a) Track data on labor costs
b) Calculate labor needs
c) Set policy on work schedule
d) Track wage reviews
e) Track time needed for employees to
accomplish given tasks
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IV. Joint Employers, cont.
Factors General Counsel proposes, cont.
f) Handle employment applications
through their own system
g) Impose safety rules
h) Impose hygiene/appearance (uniform,
etc.) rules
Consequences for both: remedy and collective
bargaining.
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V. Access to Email
• If employees have been given access to
company email systems – they must be
permitted to use those systems for “Protected
Communications” during non-working time
• Protected Communications are
communications that relate to union or other
“concerted activities.” Purple Communications,
361 NLRB No. 126 (2014).
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