Tag Archives: nlrb


Phoenix lawyer urges Congress to block ‘joint employer’ rule

Phoenix lawyer Mark Kisicki called on Congress Tuesday to “restore stability in labor relations” by reversing a National Labor Relations Board ruling that he said will cause “significant economic upheaval” if left untouched.

Kisicki was one of several witnesses testifying to a Senate committee on an August change to NLRB regulations so that any company that exercises indirect control over a worker can be considered an employer, along with any other business that has indirect control.

The new definition of “joint employer” changes a standard that had not been updated in more than 30 years, creating what Kisicki called “a sense of uncertainty and potential economic costs that could be overwhelming for small employers and significant for larger employers.”

Kisicki is a shareholder in Ogletree Deakins, which represents management in labor and employment issues, according to his testimony.

“The old standard required that both employers exercised direct and immediate control over the terms and conditions of the group of employees at issue in the case” to be considered joint employers, Kisicki said after the hearing.

The new ruling could make franchised companies responsible for the actions of franchisees, witnesses said, and could open otherwise separate businesses to organizing activities by unions.

But supporters said the change is needed to protect workers in the modern economy, where contracted-out work often gives employees no recourse when labor laws are violated.

“When workers want to join together with their coworkers, they are not looking for special treatment,” said Sen. Patty Murray, D-Wash. “They are simply exercising their basic rights guaranteed by law.”

Murray, the ranking Democrat on the Senate Health, Education, Labor and Pensions Committee, said in her opening remarks that the NLRB ruling “does not change the relationship between a local business owner and her employees.”

Murray praised the labor board for adapting to “the realities of today’s workplaces” in order “to keep the American Dream in reach for all families.”

Far from keeping the American Dream within reach, however, Sen. Lamar Alexander, R-Tenn., said the joint employer rule “threatens to steal that American Dream from owners of the nation’s 780,000 franchise businesses and millions of contractors.”

In 2007, franchises made up 10.5 percent of the country’s businesses with paid employees, according to the Census Bureau. They included construction, manufacturing, and retail trade firms, along with businesses in many other sectors.

“The labor board’s new joint-employment standard will make big businesses bigger and make the middle class smaller by discouraging larger companies from franchising and contracting work to small businesses,” Alexander, the committee chairman, said in his opening remarks.

Kisicki said after the hearing that the board’s new “joint employer” standard could have “consequences that very few employers in Arizona understand or are prepared to deal with” because “we just haven’t had much union activity in Arizona.”

Alexander has sponsored a bill that would amend the NLRB rule so that it would revert to the previous definition of a “joint employer.” The Protecting Local Business Opportunity Act, and a companion bill in the House, are both in committee in their respective chambers.

Kisicki supports those bills. If the current definition of joint employer is allowed to stand, he said, “no one is saying that all these bad things are going to happen. But some of them will.”


NLRB Issues First ‘Facebook Firing’ Decision

National Labor Relations Board Issues First ‘Facebook Firing’ Decision

The National Labor Relations Board (NLRB) is on a roll. Just a few weeks after issuing its first decision finding that a company’s social media policy violated the National Labor Relations Act (NLRA) (see alert at left or here), the NLRB yesterday released its first decision addressing the legality of an employment discharge over an employee’s social media postings.

In Karl Knauz Motors, decided on September 28 and released on October 1, the NLRB adopted the findings of an administrative law judge (ALJ) that a car dealership lawfully discharged one of its salesmen because of certain Facebook postings regarding an accident at an affiliated dealership. The NLRB concluded that those postings were not protected by the NLRA. In commenting on photos he took of a Land Rover that was driven into a pond by a customer’s son, the salesman wrote: “This is your car: This is your car on drugs.”  The salesman continued: “This is what happens when a sales Person sitting in the front passenger seat…allows a 13 year old boy to get behind the wheel of a 6000 lb. truck built and designed to pretty much drive over anything.” In response, the employer fired the salesman because his actions damaged the reputation of the company and the individuals involved, and because the salesman showed no remorse for his actions.

While the car dealership maintained, and the ALJ agreed, that these postings were the sole reason for discharge, these were not the only Facebook postings that the salesman made around the same time as the postings described above. Another set of postings involved photos and comments about the dealership serving hot dogs, chips and bottled water at a sales event announcing a new BMW model. Among other things, the salesman wrote: “The small 8 oz bags of chips, and the $2.00 cookie plate from Sam’s Club, and the semi fresh apples and oranges were a nice touch…but to top it all off…the Hot Dog Cart. Where our clients could attain a over cooked wiener and a stale bun.”  The ALJ found that these postings were protected, concerted activities because customers could have been disappointed by the food options at the event and this could have impacted the salesman’s compensation. In its decision, the NLRB did not decide whether the “hot dog” postings constituted protected concerted activity under the NLRA.

In addition to the NLRB’s conclusion regarding the legality of the car salesman’s discharge, the NLRB also concluded that a “courtesy” rule in the car dealership’s employee handbook was overly broad and could be construed by employees as prohibiting NLRA-protected conduct. The handbook language at issue provided:

(b) Courtesy: Courtesy is the responsibility of every employee. Every employee is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.

The NLRB found the second section of the rule—regarding not being “disrespectful” or damaging the dealership’s image or reputation—violated the NLRA because the rule “proscribes not a manner of speaking, but the content of employee speech—content that would damage the [dealership’s] reputation.”  The NLRB ultimately ordered the dealership to remove the courtesy rule from its employee handbook and give employees inserts or new handbooks. The NLRB did not address other policy language that was at issue before the ALJ.

What This Means for Employers

The Karl Knauz Motors decision is the first in what will likely be many more decisions by the NLRB as the NLRB’s regional offices continue to issue complaints over so-called “Facebook firings” (other cases are currently pending before the NLRB). The decision is also consistent with the NLRB’s increased focus on social media postings and policies, as reflected in the many cases detailed in three reports issued by the NLRB’s Acting General Counsel since August 2011.

Before disciplining or discharging a union or non-union employee over a social media posting, employers should consider whether the posting constitutes protected concerted activity under the NLRA and consult with legal counsel. In addition, social media policies should be narrowly written to ensure they do not run afoul of the NLRA. Such policies should make clear that employees may engage in protected concerted activity without penalty. Again, counsel should be consulted when drafting or revising a social media policy.

Social Media rights

Social Media Series: Employers Have To Be Diligent About Not Violating Employees’ Rights When It Comes To Social Media

This article is part of an ongoing series about social media in the workplace. We’re interested in your feedback/questions, so please comment and the authors may address your issue in their next article.

Tweet from Uncle Sam: Let your employees talk about their working conditions through social media — or else!

Social media can get employers in trouble. Without a narrowly tailored policy guiding how the company will manage its employees’ use of sites such as LinkedIn, Facebook and Twitter while the employee is on the job, the employer may very well run afoul of the National Labor Relations Act, which is enforced by the National Labor Relations Board (NLRB).

The NLRB’s avid interest in social media stems from its charge to ensure that both union and non-union employees’ federal right to discuss the terms and conditions of employment, including wages, hours and other working conditions, is protected.

The increased interest by the NLRB in matters affecting employees’ use of social media began late last year. At that time, the federal agency filed a complaint against a Connecticut employer for terminating an employee who had posted negative comments about a supervisor on Facebook. The NLRB tweeted this past winter that the case had settled. The employer agreed to: (1) revise its social media policies to ensure that the employees are guaranteed the right to discuss the terms and conditions of employment and (2) never discipline or fire employees for engaging in such activity in the future.

In Arizona, an Arizona Daily Star reporter was terminated for inappropriate and unprofessional tweets. The termination resulted in the employee filing an unfair labor practice charge with the NLRB against the Star. After investigation, the NLRB dismissed the charge, concluding that the termination was lawful because the tweets at issue did not relate to the terms and conditions of employment.

Just last month, the NLRB announced its intention to file a civil complaint against Thomson Reuters for firing a reporter for one of her tweets. The tweet read: “One way to make this the best place to work is to deal honestly with Guild members.”  According to the NLRB, Thomson Reuters violated the reporter’s federal right to comment on the terms and conditions of her employment.

The NLRB’s growing interest in social media as it relates to employees demonstrates that there is a line to be drawn between protected and non-protected activity taking place in cyberspace. Determining where to draw that line is challenging. Even the NLRB recognizes the fast-moving nature of emerging social media issues in the context of employee-protected activity.

On April 12, the NLRB’s Office of the General Counsel issued a memorandum requiring regional offices to submit social media cases to the NLRB’s Division of Advice for review prior to issuing an administrative complaint.  The memorandum states that the Division of Advice must handle prosecution of social media cases, because there is a dearth of case law currently available and the NLRB considers the issue a policy priority.

Co-author: Carrie Pixler

[stextbox id=”grey”]More than ever, employers need guidance about social media in and around their workplaces. We’d like to hear from you about your issues and questions related to social media and your business. Please post a comment below this story and we may address your issue in the next edition of our Social Media Series.[/stextbox]