National Labor Relations Act

When we last checked in with the support staff at the law firm of Elizabeth R. Wellborn P.A., we discovered that more than a dozen of them had been fired because they wore orange shirts to work. Their excuse: they all wore orange on payday so they’d look like a group when they met for happy hour. Management didn’t buy it — they thought that members of the support staff were protesting something, and fired them on the spot.

As one commenter on our last post on this issue intelligently noted, “CHECK YOU PERCEIVED CONCERTED ACTIVITY.” One week later, it’s been revealed that some of the support staff may have been protesting after all. Almost half of them have lawyered up. But what, exactly, were they protesting?

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Four months ago, you revised your company’s policy on employees’ use of social media. The policy said all the right things: When employees use social media, they should respect the rights of others and treat people with dignity; obey the company’s code of business conduct; maintain corporate confidences; and so on.

Unbelievably, some recent communications from the National Labor Relations Board suggest that each of those provisions (except for the “and so on”) could actually cause your company some labor pains. Why?

Here’s the easy part: The National Labor Relations Act protects employees who engage in “concerted activities” for the employees’ “mutual aid or protection.” Those words apply across the workforce and are not limited to unionized employees. An employee acting solely on his or her own behalf is not engaging in “concerted activities.” On the other hand, consider an individual employee who is working with (or on the authority of) other employees, or is trying to induce a group of employees to act, or is bringing group complaints to the attention of management. The NLRA may protect all of those activities, and an employer may violate the NLRA if it maintains a rule that could reasonably “chill employees in the exercise of their” rights.

What does that mean for the three examples suggested in the opening paragraph of this post?

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