Employment Advisory  

Published by Howard & Howard Attorneys PLLC

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June 5, 2014
Thank you for taking the time to read this Howard & Howard Employment Advisory.  We are pleased to provide our clients and friends with periodic updates on issues, industry developments, and regulatory changes to help you address the changing challenges facing employers.  As always, if you have any questions, please feel free to contact any of the Howard & Howard Labor, Employment and Immigration Group attorneys.


NLRB Offensive Against Employers Continues


Two recent decisions by National Labor Relations Board ("NLRB") Administrative Law Judges ("ALJ") highlight the NLRB's ongoing offensive against employers, including non-unionized work places.


In April, an ALJ held that a unionized employer's social media disclaimer policy violated the National Labor Relations Act. The policy required that: "If you identify yourself as an associate of the Company and publish any work-related information online, you must use this disclaimer: 'The postings on this site are my own and do not necessarily represent the postings, strategies or opinions of [the Company]'."


The ALJ framed the issue thusly: "The ultimate issue, then, is whether requiring a disclaimer for every posting by an individual identified as a [Company] employee that conveys "work-related" information unduly burdens legitimate Section 7 communication to an extent that would be likely to chill employees willingness to engage in it." The ALJ determined that requiring employees to state that they were not speaking for the company "chilled" their willingness to talk about work-related issues. "It denies the employee the right to speak publicly about [the Company's] workplace with others without the intrusive demand by the employer that it may force its disclaimer upon the discussion."


In a second case, arising from an allegedly rigged Hooter's bikini contest, an ALJ determined that a restaurant's insubordination policy violated the Act. In that case, a contestant/employee congratulated the winning contestant/manager for cheating, and was later terminated. The ALJ determined that a policy prohibiting "insubordination to a manager or lack of respect and cooperation with fellow employees or guests" was too broad and chilled the employees rights to communicate about the workplace. Similarly, the restaurant could not have a policy against "disrespect to guests" or use of profanity, again because it was over broad. Why? Because insubordination, disrespect and profanity were not exhaustively defined in the policy, and employees might not know what it meant or understand the parameters of the rule. Even the policy prohibiting "profanity or negative comments or actions" toward guests was held to be "over broad in that no examples or clarifications are provided."


This decision would bar employers from maintaining a policy prohibiting its employees from cursing its managers and customers. It is hard to imagine what employers can prohibit if it cannot prohibit employees from cursing its customers!


Employers who have not reviewed their policies and handbooks in the past year should do so immediately. Under the current NLRB approach, simply publishing seemingly reasonable policies is prohibited, regardless of whether the policy was enforced.  Whether the courts will allow enforcement of these ALJ decisions remains to be litigated.


For more information, contact Mike Gifford, Michael Lied, or Robert Rosenthal.



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Chicago, Peoria, Detroit, Ann Arbor, Las Vegas
In This Issue
NLRB Offensive Against Employers Continues
About Howard & Howard
Attorney Spotlight
Michael Gifford   
Michael D. Gifford
is a Member of Howard & Howard Attorneys PLLC's Labor, Employment and Immigration Practice Group, and represents employers throughout the Midwest.
Attorney Spotlight
Michael R Lied    
is a Member of Howard & Howard Attorneys PLLC's Labor, Employment and Immigration Practice Group.  Mr. Lied is the former Chair of the Illinois State Bar Association's Labor and Employment Law Section Council and represents employers throughout the Midwest. 
Attorney Spotlight
Robert Rosenthal     
is a Member of Howard & Howard Attorneys PLLC's Labor, Employment and Immigration Practice Group and represents employers throughout the
Western United States from the firm's Las Vegas office.
This Advisory is intended for informational purposes only, and is not offered as legal advice.  Please call a qualified attorney for counsel related to your particular situation.