ARE YOUR AT-WILL AND SOCIAL MEDIA POLICIES COMPLIANT?:

LATEST DEVELOPMENTS FROM THE NLRB

James H. GilliamBrownWinick

666 Grand Avenue, Suite 2000Des Moines, IA 50309-2510

Telephone: 515-242-2446Facsimile: 515-323-8546

E-mail: gilliam@brownwinick.com

National Labor Relations Board (NLRB)

NLRB

Regulates employee rights to engage in collective activities in businesses in “interstate commerce”.

Concerted activities for purposes of mutual aid and protection.

Interstate Commerce

• Non-retail establishments -- $50,000 gross receipts

• Retail/Construction establishments - $500,000 gross receipts

NLRB majority controlled by Obama-administration appointees

Hyatt Corporation Policies

“I understand my employment is ‘at will.’”

Hyatt Corporation Policies (cont.)

“I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me” and Hyatt’s president or executive vice president/COO.”

Hyatt Corporation Policies (cont.)

“[T]he at-will status of my employment … can only be changed in writing” signed by the employee and one of the two Hyatt executives.

NLRB General Counsel

“… essentially a waiver in which an employee agrees that his/her at-will status cannot change, thereby relinquishing his/her right to advocate concertedly, whether represented by a union or not, to change his/her at-will status.”

NLRB General Counsel

April 2012 Guidance on Social Media

Concern: Overbroad Policies Chill Protected Activity

Example of Overbroad Policy:

Policy language prohibiting “[m]aking disparaging comments about the company through any media, including online blogs, other electronic media or through the media.”

Example of Acceptable Policy

Policy language which prohibited “the use of social media to post or display comments about coworkers or supervisors or the Employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, or other protected class, status or characteristic”

Concern: Retaliation for Exercise of Protected Activity

Examples of Protected Social Media Discussions

Employee complaints and criticisms of a supervisor’s attitude and performance.

Examples of Protected Social Media Discussions (cont.)

Employee discussions regarding shared concerns about terms and conditions of employment

Examples of Unprotected Social Media Discussions

Expressions of individual gripes

Banner Health System

Confidentiality in workplace investigations

NLRB Position

Complaining employee has right to talk to coworkers about workplace concerns that outweighs general concerns about integrity of investigation.

EEOC Position

Employer cannot interfere with a complaining party’s ability to gather evidence or pursue a change.

On Hold

• Poster

• “Quickie” Elections

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