Newsletters

By Jeffrey Seaman

In World Color Corp. v. NLRB (D.C. Circuit No. 14-1028), the Court addressed a petition by a graphic printing company for review of a decision by the NLRB that the company’s employee hat policy violated the National Labor Relations Act (“the Act”). The employer’s policy prohibited the wearing of baseball caps other than company caps bearing the company logo. The National Labor Relations Board (NLRB) determined that the policy violated the Act because it prohibited employees from wearing union caps that bore union insignia (and thereby violated the employees’ rights under the Act). However, the policy also permitted employees to accessorize “in good taste and in accordance with all safety rules.” The company argued that the NLRB erred in failing to consider the employees’ ability, under the “accessorizing” portion of the policy, to apply union insignia to their company caps, and that, because employees were permitted to accessorize with union insignia, the policy did not violate the Act.

The NLRB had found that there was “no dispute” that the policy prohibited employees from wearing caps that bore the union insignia. The Circuit Court disagreed, noting that the NLRB had failed to consider the “accessorizing” portion of the policy, which would permit employees to attach union insignia to their company caps. The Circuit Court remanded the case back to the NLRB for further consideration of the policy, including the employees’ ability to accessorize with union insignia.

Takeaway: If uniformed employees are permitted to accessorize, such that they could display union insignia, there’s probably not a violation of the NLRA. 

Check Your Policies - They May be Unlawful

By Jennifer Jackman

On March 18, 2015, the National Labor Relations Board’s (“NLRB”) General Counsel issued a Memorandum with the intention of providing guidance to employers as to employment policies the NLRB considers unlawful. This Memo is extensive and covers many policies you likely have in your employee handbook. Many employers incorrectly believe that the National Labor Relations Act (“the Act”) does not apply to their organization if they do not have a union. To be clear, unless your organization falls within a few very limited exceptions, you should assume that your business or organization is covered by the Act which covers condominiums, service providers, non-profits and employee-owned businesses.

The NLRB Memo addresses policies most employers have in their employment manuals including provisions covering confidentiality, social media, employee conduct toward management, employee conduct toward fellow employees, and use of company logos. Like me, you may be surprised by policies that the NLRB contends are unlawful. While the NLRB Memo provides more questions than answers, what is clear is that the NLRB’s determination as to lawful vs. unlawful policies is largely determined by the context of the policy and the conduct that is intended to be addressed. From the NLRB’s perspective, any employee policies which employees might think covers conduct protected under the Act are unlawful.

For example, the Act prohibits policies that forbid employees from discussing the terms and conditions of their employment such as wages, hours and complaints. Accordingly, confidentiality and non-disparagement provisions may be overbroad, at least in the NLRB’s view, depending on the context, what conduct is intended to be addressed, and where the policy is found in the manual since the analysis includes “what conduct the employee might think is covered”.

Another surprising example includes policies addressing employee conduct toward supervisors. As an employer, you may assume that you have the right to prohibit employees from making false or defamatory statements about the employer or engaging in insubordinate behavior. Not so, says the NLRB, unless it is clear that the policy does not prohibit “protected concerted criticism of the employer”. What about policies providing for termination if an employee does not appear for work without prior authorization? The NLRB says these policies are unlawful if they could be read to include protected strikes and walkouts.

The NLRB rulings are wide-ranging and sometimes are inconsistent with positions taken by other governmental agencies and interpretations, including the E.E.O.C. To test your ability to distinguish lawful vs. unlawful provisions (at least according to the NLRB), try to answer the following: 

The above test uses actual examples cited in the NLRB Memo. The NLRB Memo is expansive and encompasses numerous policies routinely adopted by employers including:

• Confidentiality Provisions
• Employee Conduct Provisions
• Social Media Policies
• Anti-Harassment Policies
• Third Party Communication Policies
• Restrictions on use of employer logos, copyrights and trademarks
• Restrictions on Use of Photography and Recording in the workplace
• Attendance policies
• Conflict of Interest policies

Employers should review the NLRB Memo and compare it to their own policies and when in doubt, consult legal counsel to ensure that their provisions comply with this new guidance.

Proposed Legislation in Maryland Regarding the Definition of Supervisors

By Tiffany Releford

In Vance v. Ball State University, 133 S. Ct. 243 (2013), the Supreme Court narrowed the EEOC’s definition of a supervisor, which included individuals with broad day-to-day supervisory authority , to find that an employer can be held vicariously liable for the discriminatory acts of a supervisor, if the supervisor has the power to take tangible employment actions against the employee. In other words, the definition of supervisor was limited to those individual with the ability to hire, fire, transfer, or affect the status of the employee. The Maryland General Assembly has introduced House Bill 42, the “Fair Employment Preservation Act of 2015,” to codify existing state law and apply the broader definition of supervisor adopted by Maryland state and federal courts prior to the Vance ruling. The legislation recognizes that a supervisor often is a person that directs the daily work activities of an employee, but may not have authority to take tangible employment action against the employee. Since the Vance decision is an interpretation of federal law and not Maryland law on employment discrimination, the purpose of the bill is to recognize that the Vance decision does not limit the authority of Maryland courts with regard to vicarious liability of employers under specified circumstances in employment discrimination and retaliation cases based on quid pro quo harassment or the creation or continuation of harassment in a hostile work environment. A hearing on the bill was held in February 2015; however, the bill has not been scheduled for a vote.