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Labor Law in Limbo: Despite a stinging court defeat, the NLRB isn't backing down

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“My guess is that the current trajectory of the board will stay at least similar,” Kurlinski said. “They probably will continue to pursue the same kinds of rulings. We might have this uncertainty for a couple of years out. If we get a quorum, the board is going to continue in this same vein or pattern.

“It could be moderated if the president runs into problems getting a quorum appointed, but I don’t think in the long term the general outlook of the board, or the position the board is taking on some of these relevant issues, is going to change significantly.”

Social media status quo

Patel and Kurlinski said the Noel Canning decision has no impact on the NLRB’s controversial rulings on social media policy, which were made prior to the 2012 recess appointments. Among other things, those rulings held that an employee’s work-related social media communications, even if they were disrespectful to supervisors and reflected badly on the company, should not lead to any disciplinary action if employees are engaged in “protected, concerted” actions pertaining to working conditions.

Translation: If one of your employees gets in your face on Facebook, there isn’t much you can do about it, provided the employee is communicating something about working conditions. “That definitely remains the same,” Patel said. “I think that was advanced by the general counsel of the NLRB. They have been enforcing the concerted activity across the board.”

Kurlinski believes that, taken collectively, the NLRB’s Obama-era rulings aggressively enforce the NLRA’s Section 7 protections relative to the enforcement of employment policies on confidentiality and, relatedly, the engagement of co-workers in a particular manner. 

“They are very quick to find infringement of Section 7 rights to engage with others about terms and conditions of employment,” Kurlinski said. “For my private-sector employers that are non-unionized, it’s an important reminder to them that they should be cognizant of what kinds of restraints they are placing on employee speech.”

What about significant NLRB rulings that are unrelated to social media? There have been a few, but one that stands out to Kurlinski involves workplace investigations. “That was a pretty shocking decision for a lot of folks who have pretty strict confidentiality requirements as it relates to workplace investigations, to the extent that interviewed employees in investigations should not speak about the terms of the investigation with others,” she explained. “The NLRB took the opposite position, that an investigation and the topics of an investigation are often about a term and a condition of employment, so employees can, in a protected and concerted manner, discuss them.

“It gets back to that same core theme. The reason social media cases are so hot is that they are about confidentiality and what you can’t discuss and in what forum, and what language you can use to discuss those things.” 

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