Labor Law Liability Blurs in McDonald’s Case

The NLRB charged McDonald’s as a “Joint Employer” with franchisees in alleged labor violations by illegally threatening worker advocating for higher wages and improved working conditions.

[wc_divider style=”dotted” line=”single” margin_top=”” margin_bottom=””]

NLRB Charges Add Labor Law Liability to Franchisors for Franchisee Violations

The National Labor Relations Board (NLRB) filed complaints against McDonald’s corporate and dozens of McDonald franchise operations for illegal termination and intimidation of workers who were attempting to organize for better wages and working conditions.

Since the nationwide fast food-worker strikes and demonstrations in 2012 (the Fight for 15 movement), the NLRB leveled more than 300 charges of unfair labor practices against McDonald’s franchisees and 10 corporate-owned McDonald’s facilities.

The NLRB alleges that McDonald’s restaurants retaliated against workers who participated in demonstrations or advocated for improved pay and working conditions – actions that are considered protected concerted activity under Section 7 of the National Labor Relations Act (NLRA). The charges of retaliation include reductions in hours, discharges, threats, surveillance, interrogations, and over-broad restrictions on communication with union representatives or with other employees.

The NLRB found that McDonald’s corporate has “sufficient control” over franchisee operations that makes them liable for violations of the NLRA as a “joint employer” with franchisees. According to Politico, this is the first time McDonald’s has been held responsible for labor violations leveled against independent owners and franchisees.

McDonald’s has more than 15,000 restaurants in the U.S., but only 10 percent are owned and operated by McDonald’s corporate.

The complaints will be considered by administrative law judges beginning in March 2015 but can then be appealed to the five-member NLRB.

The NLRB’s General Counsel advised the NLRB to apply the joint employer standard based on “industrial realities” wherein one company exerts enough influence over the operations of another business to effectively have control over labor decisions.

Opposition to the Joint Employer Classification

McDonald’s is promising a strong counterattack against their inclusion in the charges as a joint employer, which they see as a threat to the entire franchise system, and they’re not alone. Other organizations have expressed concern about the potential for undermining the distinct separation of franchise standards and the day-to-day operational liability afforded by franchisor-franchisee agreements.

The U.S. Chamber of Commerce is among opponents of the McDonald’s classification as a joint employer:

“The complaint issued against McDonald’s by the NLRB determining that McDonald’s corporation should be considered a ‘joint employer’ is cause for concern as it undermines settled law…This complaint upends existing law and is part of a larger agenda at the NLRB to overturn the joint-employer standard.”

International Franchise Association Executive Vice President of Government Relations & Public Policy Robert Cresanti took an even stronger stance:

“The Board has effectively legislated a change to the definition of who an employer is, which will impact hundreds of thousands of businesses. Unelected government bureaucrats, let alone one prosecutor, should not have such power.”

Advice for Franchisors

Keeping your distance from franchisee operations is the best course of action for franchisors according to hospitality attorneys Davis Wright Tremaine LLP.

“…completely distance all operating advice from anything that could remotely be interpreted as suggesting or recommending particular employment practices. Do not provide template employee handbooks; do not threaten to terminate a franchisee who fails to discipline or fire an errant employee for violating brand standards. Instead, use the threat of terminating the franchise agreement to encourage franchisees to make their own decisions about how to achieve full compliance with system standards.”

GovDocs recommends that all employers take time to audit their labor law postings – city, state, and federal – to ensure that each business location displays the most current and required workplace notices for employees. Out-of-date or missing postings are “low hanging fruit” for workers who are on the look-out for workplace violations.

Subscribers to our labor law news alerts receive an additional 20 percent discount for GovDocs Labor Law Poster Compliance packages using coupon code BLOG20. For larger employers with multiple locations, contact us for volume discount pricing on labor law posting compliance products and services.

[wc_divider style=”solid” line=”single” margin_top=”” margin_bottom=””] [gravityform id=”2″ name=”Stay Informed of Labor Law News from GovDocs” description=”false”]

HR – Take the Spooky Out of Halloween at Your Workplace

It’s a spooky time of year for employers. Halloween parties are in full swing with potentially offensive costumes and themes. (Not to mention that your employees have full access to liquor and social media!) Here are some examples of ‘employees gone wild’ on Halloween – and some suggestions for more treats, fewer tricks.

Halloween Costumes – What You Wear on Social Media Can Get You Fired

Off-site Celebration and Facebook:

This party took place in a private home, but when a racially charged photo was posted online, it went viral.

TRICK: Two Florida men attended a Halloween party dressed as Trevon Martin and George Zimmerman. The woman in the photo posted it on Facebook with the caption “Happy Halloween from Zimmerman & Trayvon.” An immediate firestorm began. Angry social media users discovered who her employer was and contacted them to report the post. The woman’s employer fired her after hearing about the photo and the backlash she was receiving on social media.

TREAT: Employees’ personal photos on social media can have unintended consequences for their employers. If employees do not want their personal lives impacting their professional lives, they should keep the two separate. For example: employees could omit the name of the company they work for in their profiles and not post photos of themselves at work or in their work uniforms.

On-site Celebration and Twitter:

A costume worn to a work party created social media repercussions.

TRICK: A woman in Michigan attended her work party dressed as a survivor of the Boston Marathon bombing. She posted the picture on Twitter and Instagram. Once again, angry social media users fired back. However this time, the backlash turned nasty and included death threats made not only to her, but her family. The woman took to Twitter to apologize and to ask that people leave her family alone. She even tweeted that her employer had fired her as a result of the uproar the costume caused.

TREAT: The negative publicity on social media potentially made the employer look bad, forcing them to make a hard decision to terminate the employee. A stronger set of rules around work-sanctioned events could have prevented this unfortunate event.

Halloween Happy Hour – Too Ghoulish for Some

A seemingly innocent workplace happy hour left a ‘bad taste’ with employees.

TRICK: An HR manager in Washington, D.C. coordinated a Halloween happy hour in her company’s conference room. She decorated the room with cobwebs, spiders, black and orange decorations and candles. Two of the company’s employees refused to go into the conference room, because they believed Halloween celebrations are satanic. Because of their reaction to the happy hour, there have not been any further Halloween celebrations in that workplace.

TREAT: To help employees avoid potentially scary situations, let them participate in the planning of the event. Also send out notification well in advance so everyone knows what to expect.


Policies and Guidance

To keep workplace Halloween celebrations from crossing the line, be sure to set very clear guidelines about what types of costumes and decorations are allowed. Tie the fun in to the company culture, values or customer service ideals. Try to make the celebration more about having fun than about witches and ghouls.

Other Types of Halloween Celebrations

Instead of the typical office celebration, consider some of these alternatives:

  • Halloween-themed run/walk with prizes for the best kid’s or pet’s costume (while raising money for your favorite charity).
  • Hayride and apple-picking at an orchard.
  • Harvest festival with games and food.
  • Team-building volunteering to pack groceries at a charitable food bank.

These are ideas to help keep the “spirit” of Halloween alive, yet also to keep it tasteful – and can be opened up to employees’ families.

What Do You Think?

Do you think Halloween costumes have gone too far? Is there a ghost of a chance that your company still hosts Halloween events, or are you still haunted by Halloweens past?

What Can Employees Talk About At Work?

Policies prohibiting employees from discussing wages, benefits and working conditions with their co-workers, either written in an employee handbook or implied by management, are in violation of the National Labor Relations Act.

Michigan Workers Organizing Committee vs. EYM King of Michigan, LLC (Case 7-CA-118835)

An Administrative Law Judge found that a Burger King franchise in Detroit, MI violated the National Labor Relations Act (NLRA) by threatening to let an employee go for discussing protests while working, for maintaining and enforcing a ‘no solicitation’ rule on employees that prohibited them from being on premises unless they were either working or eating, and by sending a union worker home early for failing to “put pickles on her sandwiches in perfect squares as she was supposed to do.”

Whether employees are represented by a union or not, they have rights under the NLRA which is enforced by the National Labor Relations Board (NLRB). The NLRA was established in 1935 and is a federal law that governs the basic rights of private sector employees.

Section 7 of the NLRA reads “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title].” An employer can’t interfere or retaliate against employees for exercising these rights.

Setting Guidelines on What Can Be Discussed

It is legal for employers to set some guidelines to help limit the types of discussions that happen while employees are working, however, employers cannot prohibit discussions of wages and conditions during working hours if they allow other types of conversation to take place that are unrelated to work.

What is Protected Concerted Activity?

Protected Concerted Activity is defined as “a legal term used in labor policy to define employee protection against employer retaliation. It is a legal principle under the subject of the freedom of association.” An example of protected concerted activity is when two or more employees talk to their employer about wages, benefits, working conditions or other conditions of their employment. An individual employee may also engage in protected concerted activity if (s)he is speaking up for a group of employees.

For more information on the NLRA, check here.


[gravityform id=”2″ name=”Stay Informed of Labor Law News from GovDocs”]

Maryland Law Protects Transgender Persons

Maryland becomes one of 17 other states, D.C. and Puerto Rico that has passed legislation making it illegal for public accommodations, housing, and employment to discriminate against people based on gender identity.

Governor O’Malley signed into law the Fairness for All Marylanders Act of 2014 (SB 212), which became effective October 1, 2014.

What Maryland’s Fairness for All Act Means to Employers and Businesses

Treatment of Employees

Basically, employers with transgender employees must not treat them any differently than any other employee on the basis of their gender identity. Maryland employers cannot:

  • Refuse to hire a transgender applicant based on gender identity.
  • Fire an employee on the basis of gender identity.
  • Fail to promote or to provide training and benefits to qualified employees on the basis of their gender identities.

An employer may uphold appearance, grooming, and dress standards as long as transgender employees are allowed to “dress consistent with the employee’s gender identity” (20–605a2).

Treatment of Customers and Tenants

Businesses that provide “public accommodation” (establishments where the public has access and receive goods or services) like hotels, restaurants, bars, gas stations, movie theaters, stadiums, and retail stores cannot treat transgender persons differently than other patrons and guests based on their gender identity.

For example, an establishment cannot refuse service to a transgender person, and landlords cannot refuse to rent to a transgender person on the basis of gender identity.

Maryland Protected Classifications

Gender identity is now one of the ten classifications protected from discrimination by Maryland law.

  • Race
  • Sex
  • Color
  • Creed
  • National origin
  • Marital status
  • Sexual orientation
  • Age
  • Gender identity
  • Disability

 What is “Gender Identity”?

The Maryland law defines gender identity as a:

“…persistent, bona fide gender-related identity and the consistent, public manifestation of that identity in the gender-related appearance of an individual regardless of the individual’s assigned sex at birth the gender-related identity, appearance, expression, or behavior of a person, regardless of the person’s assigned sex at birth, which may be demonstrated by:

(1) Consistent and uniform assertion of the person’s gender identity; or

(2) Any other evidence that the gender identity is sincerely held as part of the person’s core identity.”

What Changed on Maryland’s Employment Discrimination is Unlawful Posting?

…And Is the Posting Required? NO.

UPDATE: October 7, 2014. Maryland’s revised posting adds gender identity to the list of protected classifications and also ancestry, but the GovDocs Research Department has confirmed with the Executive Associate of Maryland Commission of Civil Rights that Maryland does not require employers to display the Employment Discrimination is Unlawful posting. Therefore this is not a mandatory change that employers need to action on in terms of updating postings.

Diabetic Cashier In Federal Discrimination Case

The case of the hypoglycemic cashier fired for “grazing” begins with a drop in glucose (blood sugar).

An employee of a discount store in Tennessee felt the symptoms of an insulin reaction come on suddenly, and she drank an orange juice from a store cooler to restore her blood sugar levels. She paid for it later – in more ways than one: not only did she pay the dollar for the O.J., she also got fired.

The specific cause for termination cited by the employer was the violation of their “no grazing” policy that prohibits employees and customers from eating store merchandise prior to paying for it.

Diabetes and Reasonable Accommodation

This did not sit well with the U.S. Equal Employment Opportunity Commission (EEOC) who took the discount retail giant to Federal District Court (EEOC v. Dollar General) citing violations of the Americans with Disability Act (ADA) that protects workers from discrimination on the basis of disability and includes instances when an employer does not make reasonable accommodation for disabled workers.

An employee experiencing hypoglycemia may get shaky, have chills, rapid/fast heartbeat, blurred/impaired vision, headaches, and seizures.

The employee had previously requested to keep her own juice at her work station, but the store denied those requests – a failure to reasonably accommodate her diabetes, according to the EEOC. They maintain that an employee should not be fired for having diabetes or for tending to emergency health concerns resulting from a life-threatening medical condition.

Diabetes is the seventh leading cause of death in the U.S. and more cases are being diagnosed each year. Employers should learn more about diabetes and how it can affect their company policies regarding eating at work stations.


[gravityform id=”2″ name=”Stay Informed of Labor Law News from GovDocs” description=”false”]

Disclosing Bipolar Disorder Key to Discrimination Claims

Workers with bipolar disorders can be as productive and successful as any other worker. However, employers and their workers with bipolar disorder should be aware that disclosure of a disability allows an employer to provide reasonable accommodation under the requirements of the Americans with Disabilities Act (ADA). The two situations below – one where the employee disclosed a bipolar disorder and one in which the employee did not disclose – underscore the importance of disclosing a disability.

Example 1: When Playing the Bipolar Card Failed Because of Lack of Disclosure

Ryan Foley was a financial advisor at Morgan Stanley in Florida (Ryan Foley v. Morgan Stanley L13-11413). Foley, who suffered from bipolar disorder, believed the company was spying on him, so he swapped his work computer’s central processing unit and hard drive with those of a coworker’s computer.

When the company realized the work computer was gone, they reviewed security tapes and saw Foley leaving with the equipment. Foley was questioned about the computer’s whereabouts, but he maintained that he didn’t know where it was. Once he “remembered” where he took the computer, he returned it to Morgan Stanley and was fired that same day.

Foley claimed that he was in the midst of a ‘psychotic episode’ brought on by his bipolar disorder and maintained that he was fired due to this disability. A judge ruled that Foley wasn’t entitled to protection under the ADA because he never disclosed his bipolar disorder to Morgan Stanley. That lack of disclosure was the difference between a disabled employee requiring accommodation under the ADA and an employee who simply violated Morgan Stanley’s policies on protecting crucial company data – policies he knew about and signed off on in his employee handbook.

The ruling cited case law and the EEOC’s own resources, such as The Americans with Disabilities Act: A Primer for Small Business, which states:

“[An employer does] not have to tolerate violence, threats of violence, theft, or destruction of property, even if the employee claims that a disability caused the misconduct.”

The judge therefore ruled that Foley’s termination was justified.

Example 2: Disclosing Bipolar Disorder Sets Stage for Discrimination Case

Sean Reilly, who also suffered from bipolar disorder, was hired as an assistant manager at The Cash Store in Washington (Equal Employment Opportunity Commission v. Cottonwood Financial Ltd., case number 2:09-cv-05073). He disclosed his bipolar condition and later was promoted to Store Manager only a few months after being hired.

Like Ryan Foley, Sean Reilly experienced a manic episode causing extreme paranoia. Reilly asked for time off from work as his psychiatrist adjusted Reilly’s prescribed medications. His request was denied, and he continued to work. But he dropped the “eff bomb” on some paperwork, and that caused his manager to write him up for obscenity as part of an employee performance improvement plan. Higher-level managers weighed in, however, and instructed Reilly’s supervisor to terminate his employment.

U.S. District Judge Edward F. Shea ruled that Cottonwood violated the ADA when it wrongfully terminated Reilly and that the company failed to make reasonable accommodation for Reilly’s bipolar disorder. The Cash Store must also train their managers and human resource staff about anti-discrimination and anti-retaliation laws.

“The court sent an important message today that employers can’t substitute fiction for facts when making employment decisions about disabled workers. Employers acting on outdated myths and fears about disabilities need to know that the EEOC will not shy away from taking ADA cases to trial to bring them into the 21st century.”

  • William Tamayo, EEOC’s regional attorney in San Francisco

When Does an Employee Need to Disclose a Disability?

There is no right time to disclose a disability – every situation is different. Employees only need to disclose a disability if they need reasonable, work-related accommodation. The U.S. Department of Labor (DOL) suggests that employees make the decision to discuss their disability when it works for them – whether that is during the interview process, after a job has been offered, or not at all. Disclosure of a disability is protected by the Equal Employment Opportunity Commission (EEOC).

What is Bipolar Disorder?

The National Institute of Mental Health (NIMH) defines Bipolar Disorder (or manic-depressive illness) as

“a brain disorder that causes unusual shifts in mood, energy, activity levels, and the ability to carry out day-to-day tasks. Symptoms of bipolar disorder are severe. They are different from the normal ups and downs that everyone goes through from time to time. Bipolar disorder symptoms can result in damaged relationships, poor job or school performance, and even suicide. But bipolar disorder can be treated, and people with this illness can lead full and productive lives.”

What is the ADA?

The ADA became law in 1990. The ADA is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including employment, transportation, public accommodation, communications, and governmental activities. The ADA is enforced by the Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), the Department of Transportation (DOT), the Federal Communications Commission (FCC), and the Department of Justice (DOJ).

[gravityform id=”2″ name=”Stay Informed of Labor Law News from GovDocs”]

Indiana Vets Protected from Workplace Discrimination

The Indiana Civil Rights Commission has added veteran status to the list of classes of workers protected from employment discrimination.

Among other changes, the Indiana General Assembly amended the State’s labor and safety Act (HEA 1242) to prohibit employers from refusing to hire an applicant for employment who has served in the U.S. armed forces or is a member of the Indiana National Guard or member of a reserve component.

Forced Veteran Hire Clause Added

The revised Act also states that the State may force an employer guilty of discrimination against a veteran or member of the Indiana National Guard or reserve component to hire the applicant, among other potential penalties. Section 4(j)

Not Just Hiring: All Workplace Discrimination Against Vets Prohibited

While the revision to the Act focused on discrimination against Indiana veterans in the hiring process, the Act also prohibits discrimination against all covered protected classes in firing, training, discipline, compensation, promotion and other terms or conditions of employment.

Required Indiana Posting Revised

Employers with six or more employees in Indiana are required to display the revised Indiana Equal Employment Opportunity is the Law posting and give notice of the Act to job applicants.

The revised posting is part of the GovDocs Indiana Labor Law Poster Package in electronic and printed formats, along with other workplace postings required for Indiana employers:

  • Equal Employment Opportunity
  • Workers’ Compensation
  • Teen Worker Hour Restrictions (Child Labor)
  • Minimum Wage and Overtime
  • Safety & Health Protection on the Job
  • Workforce Development Act
  • No Smoking At Building Entrance
  • Smoking Prohibited by State Law

[gravityform id=”2″ name=”Stay Informed of Labor Law News from GovDocs” description=”false”]

Public Employees: Tell the Truth, the Whole Truth

When public employees are called to testify in court cases as representatives of their departments or agencies, do they put their jobs on the line if their testimony contradicts the “company line”?

Let’s say you’re a government employee responsible for keeping your department’s finances above-board. In your latest financial audit, you discover that a state representative has been receiving a paycheck from your department without actually doing anything. You ask questions, of course, but your boss and the department’s attorney warn you that if you dig any further, you may be fired.

You’re not afraid. You want to do the right thing, so you contact the state representative in question and ask her to at least start earning her paycheck by showing up for work. She refuses. You cut off her paycheck.

It turns out this state representative has her fingers in a few other cookie jars, and the FBI is onto her. They subpoena you, and you testify in two different court appearances about how she received money in exchange for doing nothing.

Then, due to “budget cuts”, you and 29 coworkers receive termination letters. Hey, times are tough. It could happen – except that the other 29 coworkers receive a follow-up notice that they can return to work.

They’re rehired. You’re in the breadline.

This story has an unfortunate basis in reality, being conveyed in a U.S. Supreme Court decision of Lane v. Franks. In his argument, Edward Lane (the terminated employee) alleged he was fired in retaliation for testifying about Alabama State Representative Sue Schmitz’s payment irregularities in court, under oath. The termination, he argued was not only retaliatory but also a violation of his First Amendment rights to free speech.

Public Employees Protected from Retaliation for Truthful Testimony

The case of Lane v. Franks determined that public employees cannot be fired in retaliation for testifying truthfully on matters of public corruption or public concern. In this case, the termination was retaliatory and Lane’s First Amendment rights were violated, the Supreme Court ruled unanimously.

Does the First Amendment permit the government to retaliate against a public employee for sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary work duties?

Whatever Happened to Sue Schmitz?

Former Alabama State Representative Sue Schmitz – the rep with her hands in the cookie jar – was convicted in 2009 of federal mail fraud and theft charges. She did a 30-month stint in a Kentucky minimum-security prison camp and was released in 2012.

[gravityform id=”2″ name=”Stay Informed of Labor Law News from GovDocs” description=”false”]

NLRB Orders a Free Lunch after Fast Food Workers Strike

Workers at Gates & Sons Barbeque, a barbecue joint in Kansas City, enjoyed free shift lunches in addition to their hourly wage and eligibility for monthly bonuses. But when the restaurant’s management learned that the Workers’ Organizing Committee of Kansas City (WOC) planned a citywide one-day strike of food workers, one manager told his employees that, if they participated, they would feel his wrath and be terminated as no-shows.

Why Fast Food Workers Organize

Workers’ organizations like the WOC point out that the fast food industry nets $200 billion in sales per year while many of their employees earn minimum wage, and 52 percent of fast food workers rely on government welfare programs.

Kansas City Fast Food Workers Strike

The day of the WOC strike, seven employees of the restaurant’s Main Street location delivered a letter to management stating they would be on strike at 7:30 a.m. to agitate for an industry-wide wage increase to $15 per hour and to “protest this Company’s interference with protected workplace rights.”

The letter also stated these employees would return to their next scheduled shifts unconditionally, but when several workers returned to their normally scheduled shifts, the location manager informed them their shifts were already covered, and that they could leave for the day.

Backlash from Strike Participation

Participants in the strike were not fired for their walk-out, but their free-lunch benefit was revoked, as was workers’ ability to run a tab that could be subtracted from future paychecks.

The restaurant manager posted a notice on the employee schedule that read:


NLRB Ruling: Unfair Labor Practice

The National Labor Relations Board (NLRB) Administrative Law Judge concluded that the barbecue joint engaged in unfair labor practices by rescinding the free shift meal at its Main Street location. The judge ordered the restaurant to reinstate the free employee meal benefit and to reimburse employees (with interest) for meals that would have been free before the strike.

The restaurant also must post a notice to employees informing them they are free to form or join a union and that they are entitled to the free lunch, which was a standard offering to employees at that location prior to the one-day food workers strike.

Lessons for Employers

The time to plan for employee walk-outs, strikes, or other activities that the NLRB would determine is protected concerted activity, your company should take the following steps instead of reacting “by the seat of your pants”:

  • Consult a labor attorney who specializes in employer-employee relations. It’s true, attorneys make more than minimum wage, but they can save your business from substantial financial losses in court costs and lost revenue through bad publicity. Develop a legal response to protected employee concerted activity before you need it.
  • Formalize training for managers so they know how to identify, report, and respond to employee protected concerted activity in a legal and productive manner. Your managers are people with their own opinions and biases – and those opinions and resulting off-the-cuff reactions can have significant consequences for the entire organization.
  • Find ways to engage employees in ongoing, productive dialogue. Remember, your employees are humans who want to be heard, and when they don’t feel like management hears them (or cares about them), they get frustrated. In fact, Hay Group research indicates that frustrated employees make up 20 percent of your workforce.

Just remember the sage advice from those 1980s employee relations consultants, Depeche Mode: People are people, so why should it be that you and I get along so awfully?

[gravityform id=”2″ name=”Stay Informed of Labor Law News from GovDocs” description=”false”]

Can Workers Send Personal Email at Work?

Many employers claim their workplace cultures help employees achieve a work/life balance, but what happens when the edges between work and personal life blur? Should workers have unrestricted access to their personal email, social media, and phone calls that aren’t work-related using company computers and phones?

The General Counsel for the National Labor Relations Board (NLRB) argued that a company’s prohibition of personal communication (email and phone calls) on business computers and phone lines was in violation of Section 8(a)(1) of the National Relations Act (NLRA), which protects workers’ rights to protected concerted activity. Counsel argued that employees should be allowed to communicate freely within their workplace about employment conditions, and that company-owned equipment and systems were readily accessible avenues for employee protected concerted activity.

An NLRB Administrative Law Judge dismissed a claim that employers should be prohibited from restricting their employees’ usage of company-owned equipment and systems to send personal communications.

The company in question, Purple Communications, had developed language in their employee handbook prohibiting personal use of company-supplied computers, internet, voicemail, email, and cell phones.

All information and messages stored, sent, and received on these systems are the sole and exclusive property of the Company, regardless of the author or recipient. All such equipment and access should be used for business purposes only…Employees are strictly prohibited from using the computer, internet, voicemail and email systems, and other company equipment in connection with any of the following activities:

  • Engaging in activities on behalf of organization or persons with no professional or business affiliation with the Company.
  • Sending uninvited email of a personal nature.

The Employer is authorized to punish an employee’s violation of this policy with discipline up to and including termination.

Overly Broad Policies Are No-Go’s for the NLRB

In the same decision, the NLRB ruled the employer’s rule prohibiting employees from “[c]ausing, creating, or participating in a disruption of any kind during working hours on Company property” violates Section 8(a)(1) of the Act because it sets forth an overly broad restriction that interferes with the Section 7 rights of employees to engage in union and/or protected concerted activity.

Care to Share with the NLRB?

The NLRB is looking for feedback about whether employers should allow communications considered protected concerted activity and protected under the NLRA. Specifically, they want answers to the following:

  1. Should the Board reconsider its conclusion that employees do not have a statutory right to use their employer’s email system (or other electronic communications systems) for Section 7 purposes?

  2. If the Board overrules Register Guard, what standard(s) of employee access to the employer’s electronic communications systems should be established? What restrictions, if any, may an employer place on such access, and what factors are relevant to such restrictions?

  3. In deciding the above questions, to what extent and how should the impact on the employer of employees’ use of an employer’s electronic communications technology affect the issue?

  4. Do employee personal electronic devices (e.g., phones, tablets), social media accounts, and/or personal email accounts affect the proper balance to be struck between employers’ rights and employees’ Section 7 rights to communicate about work-related matters? If so, how?

  5. Identify any other technological issues concerning email or other electronic communications systems that the Board should consider in answering the foregoing questions, including any relevant changes that may have occurred in electronic communications technology since Register Guard was decided. How should these affect the Board’s decision?

The NLRB is accepting briefs of 25 pages or less through June 16, 2014 and responsive briefs until June 30, 2014, either of which can be submitted electronically.