Labor Relations


As a follow up to my post a few weeks ago on McLaren Macomb, the NLRB has issued new Guidance of which in-house counsel should take note.

  • The McLaren Macomb decision is retroactive. This means that any severance agreement entered into by an employee prior to February 21, 2023, which violates the McLaren Macomb decision, is now unlawful.
  • An unlawful severance agreement is a “continuing violation” of the Act, such that the six-month statute of limitations does not prohibit an employee from bringing a claim based upon a past severance agreement entered into over six months ago.
  • The decision applies to current and former non-supervisory employees, which means in-house counsel must consider whether past and current severance agreements are lawful.
  • Employees cannot waive their right to lawful confidentiality and/or non-disparagement clauses.
  • An employee need not execute a settlement agreement for there to be a violation; the Board will find a violation of the Act if an unlawful severance agreement is offered, which could result in equitable and economic remedies in favor of the impacted employee.
  • The McLaren Macomb decision impacts any employer communication to employees that tends to interfere, restrain, or coerce an employee’s Section 7 rights (i.e.,
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NLRB Employee Confidentiality


NLRB Employee ConfidentialityIn a prior post, I had discussed the importance of properly investigating allegations of sexual harassment.  Now, the National Labor Relations Board (NLRB) has added a related issue to consider: When can employers prohibit employees from discussing ongoing investigations? 

In its July 31, 2012 decision in Banner Health Systems, d/b/a Banner Estrella Medical Center and James A. Navarro, the NLRB held that Banner Health’s ongoing policy to instruct employees not to discuss ongoing investigations of employee misconduct with other employees was unlawful.  This decision was grounded in the finding that Banner Health did not have business interests that outweighed the employees’ rights under Section 7 of the National Labor Relations Act to engage in protected, concerted activity for mutual aid and protection.

In Banner, the employer’s human resources consultant routinely informed employees when they complained of employee conduct in violation of company policies or law that they should not discuss the matter with other employees while the investigation was ongoing.  Banner Health based its prohibition on its “generalized concern over protecting the integrity of its investigations;” however, the NLRB found Banner Health’s justification unpersuasive and insufficient to override employee rights under Section 7, which states:

Employees

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With greater frequency, the National Labor Relations Board (NLRB) has been exerting its authority over non-union employers.  I’d like to share an article that I co-authored with my colleague, Mike Leahy, for the Spring 2012 issue of Focus, our firm’s quarterly newsletter, about a few recent developments from the NLRB affecting non-union employers, resulting from the use of social media.  The full issue of Focus is available here.

A few years ago, many employers feared that use of social media would lead to disclosure of their confidential information and trade secrets, and implemented policies to stay ahead of the curve.  Over the past year, high profile cases involving those social media policies have provided a timely reminder that the  Depression-era National Labor Relations Act (NLRA) continues to apply to union-free workplaces, and not just unionized workplaces.

Indeed, the current chair of the National Labor Relations Board (NLRB) recently announced that he wants the NLRB to be viewed as a “resource for people with workplace concerns that may have nothing to do with union activities.” He has the law on his side.  Section 7 of the NLRA gives employees the right “to engage in…concerted activities for the purpose … Keep reading


In a prior post, we had reminded you that certain changes to the National Labor Relations Act (NLRA) regulations would become effective on April 30. 

However, as of Friday, April 13, in a case brought by the U.S. Chamber of Commerce, the U.S. District Court of South Carolina decided to strike down the requirement to post notices informing employees of their rights to unionize under the NLRA.  The South Carolina federal court decided that the posting requirements exceeded the authority of the National Labor Relations Board (NLRB), the entity charged with enforcing the NLRA.  The D.C. Circuit Court of Appeals promptly followed, issuing an injunction putting the notice posting requirement on hold, pending the resolution of whether or not the NLRB had the authority to issue the notice posting requirement. 

As a result, yesterday afternoon, the NLRB announced that its regional offices would not implement the rule requiring posting of notices of NLRA rights while the appeal of the D.C. Circuit’s decision is pending. … Keep reading

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NOTE:  Some changes have occurred since this entry was originally posted.  Please see new post from April 18, 2012 for an update.

On April 30, 2012, a number of major changes to the National Labor Relations Act (NLRA) regulations will take effect and businesses, especially those that are not unionized, should take heed.  While many employers view the NLRA as a “traditional” labor law that is  not applicable to private, non-union entities,  almost all employers engaged in interstate commerce are subject to the NLRA. 

Two of these changes (effective April 30) are of particular note:

  1. Posting of Notices:  As of April 30, 2012, all employers must post the Notice of Employee Rights under the National Labor Relations Act (English).  For now, failure to comply with the posting requirement does not automatically result in an unfair labor practice, as the regulation was originally drafted, but it is likely that the National Labor Relations Board (NLRB)will draw an adverse inference from an employer’s failure to post.  The posters must be 11 x 17 inches in size and posted in English and any other language which at least 20% of the workforce speaks, if they are not proficient in
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Most employment claims can be avoided by simply being aware of what the law requires.  Here are three recurring issues which plaintiffs’ class action attorneys and government agencies are targeting across the country and which can be easily avoided by taking action now.

1.  Misclassification of Workers as Independent Contractors

The Internal Revenue Service (IRS) and US Department of Labor (US DOL) have been increasingly cracking down on independent contractor misclassification.  Last year, Massachusetts, along with several other states, signed a Memorandum of Understanding (MOU) with the IRS and  DOL, formally agreeing to cooperate in investigating independent contractor misclassifications.  If a violation occurs, the government agency investigating the matter is obligated to report it to the other state and federal agencies which may be affected by the misclassification, potentially opening up the company to an audit by the IRS or the US DOL.

Massachusetts has one of the toughest tests to be met in order to classify someone as an independent contractor, and the penalties for misclassifying vary with the legal requirement which was not met as a result of the misclassification.  For example, if a worker was not paid accrued wages or vacation time upon termination, the … Keep reading

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