With the COVID-19 emergency impacting employers’ operations and the way employees work, more and more employees may start taking to social media to vent their opinions about work and current events (sometimes intertwining the two). Employee social media expression can damage an organization’s brand and violate its social media and non-disparagement rules. Discipline for social media expression can run afoul of the National Labor Relations Act (NLRA), which provides certain protections for employee speech, including social media speech, so that employees often believe that anything goes in this forum. Fortunately for employers, the National Labor Relations Board (NLRB) recently clarified the types of employee social media activity employers may regulate, giving employers more latitude to discipline employees for social media conduct that violates employer rules and threatens the employer’s reputation.
On July 20, labor organizations across the country are planning a “Strike for Black Lives,” a national walkout in support of “dismantling racism and white supremacy to bring about fundamental changes in our society, economy and workplaces.” When preparing for this and any political strike, employers should develop a response strategy — grounded in NLRB interpretations of employees’ rights to conduct political demonstrations — to limit liability and keep their businesses running.
On May 21, 2018, the U.S. Supreme Court issued its long-awaited opinion in Epic Systems Corporation v. Lewis, in which it held that arbitration agreements containing class action waivers were enforceable notwithstanding the National Labor Relations Act’s protection for employee “concerted activity.” The five-Justice majority opinion sparked a fiery dissent by Justice Ruth Bader Ginsburg, who focused on the opinion’s potential impact on wage and hour litigation, among other employee activities. In response, this week, Washington State’s Democratic Governor Jay Inslee issued a sweeping Executive Order seeking to discourage employers from implementing (or continuing to rely on) arbitration agreements with class action waivers. Although Governor Inslee’s action is the exception so far, it may signal a broader backlash to arbitration agreements with class action waivers in the employment context.
In a long-awaited decision, the United States Supreme Court, by a 5-to-4 vote, overturned the National Labor Relations Board’s (the “Board”) ruling that class action waivers violate the National Labor Relations Act (NLRA) because they interfere with the right to engage in “protected activity,” which, according to the Board, includes the ability to bring class or collective actions. Epic Sys. Corp. v. Lewis, No. 16-0285, 2018 WL 2292444, at *23 (U.S. May 21, 2018).
The acronyms “NLRB” or “NLRA” rarely appear in articles about enforcement of private sector non-compete agreements. Until recently. Dun dun dun! (Que the “dramatic gopher video” on YouTube).
In this thirteenth article of “The Restricting Covenant” series, I discuss two cases in which the National Labor Relations Board (“NLRB”) determined that an employer’s enforcement of non-compete and non-solicitation agreements violated Section 8(a) of the National Labor Relations Act (“NLRA”). Section 8(a) makes it an unfair labor practice for an employer to maintain workplace rules that would reasonably tend to chill employees in exercising their Section 7 rights to engage in or refrain from concerted activities protected under the NLRA.
Earlier this week, the Ninth Circuit Court of Appeals issued a ruling in Morris v. Ernst & Young and aligned itself with the Seventh Circuit in holding that an employer cannot compel individual arbitration of an employee’s class and collective action claims.
In Morris, Plaintiffs Stephen Morris and Kelly McDaniel (“Plaintiffs”) worked for the accounting firm Ernst & Young. As a condition of their employment, Plaintiffs were required to sign an agreement that the Ninth Circuit determined Plaintiffs could only “(1) pursue legal claims against Ernst & Young exclusively through arbitration and (2) arbitrate only as individuals and in ‘separate proceedings.’” In a relatively surprising move and 2-1 decision, the Ninth Circuit found that the employer violated Sections 7 and 8 of the National Labor Relations Act (NLRA) by “requiring employees to sign an agreement precluding them from bringing, in any forum, a concerted legal claim regarding wages, hours, and terms and conditions of employment.” In doing so, the Ninth Circuit overruled the lower court’s ruling in favor of Ernst & Young in its motion to compel individual arbitration and held that the agreements in question precluded Plaintiffs from “initiat[ing] concerted legal claims against the company in any forum—in court, in arbitration proceedings, or elsewhere.”