NLRB Issues Advice On Investigation Confidentiality Policies

April 24, 2013 - Asked to opine on a provision in an employee Code of Conduct mandating confidentiality in internal investigations, the NLRB’s Office of the General Counsel determined that the rule was unlawfully overbroad because an employer “cannot maintain a blanket rule regarding the confidentiality of employee investigations, but must demonstrate its need for confidentiality on a case-by-case basis.” (Jan. 29, 2013 Advice Memorandum, Verso Paper, Case 30-CA-089350.) Counsel’s office further explained that an employer must “show in each particular situation” and relying on “specific facts” that it has a “legitimate and substantial business justification” for confidentiality that outweighs employees’ Section 7 rights.  To that end, Counsel’s office advised that it would consider the following a permissible policy:

"[Employer] has a compelling interest in protecting the integrity of its investigations. In every    investigation, [Employer] has a strong desire to protect witnesses from harassment, intimidation and           retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up. [Employer] may decide in some circumstances that in order to achieve these objectives, [Employees] must maintain the investigation and [their] role in it in strict confidence. If [Employer] reasonably imposes such a requirement and [Employees] do not maintain confidentiality, [they] may be subject to disciplinary action up to and including termination." 

At-Will Employment “Disclaimers” Being Scrutinized By The NLRB

July 26, 2012 - Statements reiterating employees’ at-will status are a common sight in employee handbooks.  In fact (and often on the advice of their labor and employment counsel), many employers require new employees to sign a form acknowledging receipt of the handbook and agreeing that nothing in the handbook alters the employee’s at-will employment status.  These types of “disclaimers,” however, are now being challenged by the National Labor Relations Board.  In February 2012, an administrative law judge decided that a disclaimer which required the employee to “agree that the at-will employment relationship cannot be amended, modified or altered in any way” violated the National Labor Relations Act.  According to the ALJ, “[f]or all practical purposes, the clause in question premises employment on an employee’s agreement not to enter into any contract, to make any efforts, or to engage in conduct that could result in union representation and in a collective-bargaining agreement, which would amend, modify, or alter the at-will relationship.  Clearly such a clause would reasonably chill employees who were interested in exercising their Section 7 rights.”  See NLRB v. Am. Red Cross Ariz. Blood Servs., 28-CA-23443 (NLRB Feb. 1, 2012).  The NLRB’s regional office in Phoenix also filed a complaint against Hyatt Hotels Corp. challenging (among many other employee policy provisions) an at-will disclaimer that required the employee to “acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me and either Hyatt's Executive Vice-President/Chief Operating Officer or Hyatt's President.”  That case settled but, just last month, in statements to the Connecticut Bar Association about the case, the NLRB’s Acting General Counsel stated his view that if a disclaimer could be read to suggest that union organization is futile because even union representation and a collective bargaining agreement would leave employees “at will,” then the disclaimer violates the NLRA. 

Given the two cases filed to date and the statements of the Acting General Counsel, it seems we can expect continued challenges in this area.  Unfortunately, it is unclear at this point what (if any) at-will “disclaimer” language the NLRB would consider acceptable.  Nevertheless, employers who use such disclaimers may wish to look at their language carefully.  If the disclaimer language is broad enough that it might be read either to waive an employee’s rights under the NLRA or to suggest that it would be futile for an employee to exercise such rights, redrafting may be a good idea. 

Philadelphia Mandatory Sick Leave Ordinance Takes Effect July 1

June 27, 2012 - Last November, Philadelphia amended its 21st Century Minimum Wage and Benefits Standard to require that certain employers in the City provide mandatory sick leave to certain employees.  That amendment will go into effect July 1, 2012.

Covered employers are (1) the City of Philadelphia, including all its agencies, departments and offices; (2) for-profit service contractors, which receive or are subcontractors on contract(s) for $10,000 or more from the City in a twelve-month period, with annual gross receipts of more than $1,000,000; (3) non-profit service contractors which receive or are subcontractors on contract(s) from the City of more than $100,000 in a twelve-month period; (4) recipients of City leases, concessions, or franchises, or subcontractors thereof, which employ more than twenty-five (25) employees; (5) City financial aid recipients (in which case compliance is required for a period of five (5) years following receipt of aid); and (6) public agencies which receive contract(s) for $10,000 or more from the City in a twelve-month period. 

If covered, an employer of 11 employees or more must provide each full-time, non-temporary, non-seasonal employee with at least one hour of paid sick leave for every 40 hours worked, up to a maximum of 56 hours per year.  A covered employer with more than five but fewer than 11 employees must provide at least one hour of paid sick leave for every 40 hours worked, up to a maximum of 32 hours per year.  (For purposes of the ordinance, employees do not include those employed on a construction project covered by federal, state or local prevailing wage requirements; employed during summer months in a program to create summer jobs for students or teenagers; engaged in a bona fide training program, not to exceed 60 days in duration, under which the person will advance into permanent employment; or engaged or participating in a bona fide student internship program.) 

Covered employers may seek waivers of the ordinance requirements in certain circumstances, and the requirements also may be waived by a valid collective bargaining agreement.

NLRB Launches “Concerted Activity” Webpage

June 19, 2012 - Yesterday, the National Labor Relations Board publicly opened a new webpage devoted to educating employees – particularly nonunion employees – about their right to engage in protected concerted activity under the National Labor Relations Act.  The webpage includes the text of Section 7 of the NLRA (as well as a link to the full act), a description of what the NLRB considers the hallmarks of concerted activity, links to recent news items involving the NLRB, links to information about local NLRB offices and reporting alleged violations of the NLRA, and descriptions of a number of recent cases from around the country, all of which involve a Board determination that the employer violated Section 7 of the NLRA.  Explaining the reason for its new webpage, the NLRB said in a press release:  “A right only has value when people know it exists.  We think the right to engage in protected concerted activity is one of the best kept secrets of the National Labor Relations Act, and more important than ever in these difficult economic times.  Our hope is that other workers will see themselves in the cases we’ve selected and understand that they do have strength in numbers.”

Although the webpage is directed to employees, employers (many of whom tend to forget that nonunion employees are protected under the NLRA) also may wish to familiarize themselves with the information provided there by visiting www.nlrb.gov/concerted-activity.

NLRB Posting Rule Will Not Go Into Effect April 30

April 23, 2012 - As we posted earlier this month, the United States District Court for the District of Columbia upheld the National Labor Relations Board’s rule requiring most private employer to post a notice informing employees of their rights under the National Labor Relations Act.  Accordingly, the notice posting rule was expected to take effect next week.  A district court in South Carolina, however, subsequently held that the NLRB exceeded its authority and struck down the rule.  In the face of these conflicting decisions, the United States Court of Appeals for the District of Columbia enjoined the NLRB from enforcing the notice-posting rule, and the NLRB issued a statement advising that its regional offices will not implement the rule pending a resolution by the Court of Appeals.