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The National Labor Relations Board has issued a ruling addressing employment agreements with arbitration provisions. The agreement in this decision prevented an employee from filing a class action.  See NLRB decision.  The case concerned an agreement used by the homebuilder, D.R. Horton which provided that employees had to bring employment claims to an individual arbitrator.  The employee could not file their claim as part of a class action.  The agreement prevented an employee from fling suit in court as part of a group or class action.  

The NLRB enforces the National Labor Relations Act, the 1930's era statute that protects workers who form unions.  The NLRA also allows workers to discuss terms and conditions of their job - whether they have a union or not.  This provision of the NLRA allows employees to engage in "concerted activity," meaning group activity regarding their jobs.  The Board found that the D.R. Horton agreement infringed on concerted activity.  The ruling does not require class arbitrations.  But, it does find that no agreement may foreclose the possibility of groups of employees seeking remedies in a judicial forum. 

For many years, federal courts have been trending toward affirming employment agreements requiring arbitration of claims.  This D.R. Horton decision is a rare setback for that trend.   

The NLRB is composed of members appointed by the President.  Consequently, it is not unusual for decisions to be changed dramatically when a new administration takes over.  When the administration changes, this decision may well change. 

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A judge has ordered that five employees who voiced complaints on Facebook be reinstated to their jobs and be awarded backpay.  The five employees of Hispanics United of Buffalo complained about the workloads and other conditions of their job.  HUB is a non-profit agency in Buffalo, New York.  Their supervisor then fired them, saying their Facebook posts were harassing a co-worker.  The Director, however, did not fire his secretary who also posted a complaint.  

One of the five filed a complaint with the National Labor Relations Board.  The NLRB enforces the National Labor Relations Act.  The NLRA comntains a provision that prohibits employers from taking action against employees who discuss "terms and conditions" of their job.  Discussing terms and conditions of a job is seen as leading up to forming a union, which is protected activity.  The NLRB judge eventually agreed with the employees.  See NLRB decision.  

There have been many complaints like this one regarding web based complaints.  I discussed some of them here and here. 

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The National Labor Relations Board (NLRB) filed a complaint regarding a company which took action against an employee who had posted unfavorable comments about the company on her Facebook page.  See my prior post about this case.  The NLRB and the employer have now settled that case.  As part of the settlement, the company agreed to change its overly broad rules prohibiting employees from discussing their wages, hours and working conditions.  See report. The employer's prior policy had prohibited employees from depicting the employer "in any way" on social media sites or writing disparaging comments about co-workers or superiors.  

So, no agency decision resulted from the complaint.  But, this will surely not be the last Facebook case....

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 It is a little known provision found in the National Labor Relations Act.  An employee has the right to discuss "terms and conditions " of employment with other employees.  An employee can discuss whether they like their supervisor or whether they are paid enough.  Discussions about work issues were seen as the precursor to forming or not forming a union.  So, the National Labor Relations Act, a 1930's era statute, allows employees such discussions.  I discussed this provision in a prior post. The National Labor Relations Board refers to this as "concerted activity."  They define concerted activity as two or more employees getting together to improve working conditions.  See NLRB webpage.  

So, it was sure to happen sometime.  An ambulance driver and union member in Connecticut   discussed and disparaged her boss on her Facebook page.   The remark drew supportive statements from other employees.  The ambulance service fired her.  Now, the National Labor Relations Board is investigating.  They have issued a press release denouncing terminations for an employee discussing terms and conditions of employment.  See press release.  

Dan Schwartz at Connecticut Employment Blog, who primarily represents employers, has warned employers abut this.  See his blog post.  Even though this partiucular employee is a union member, the provision regarding discussing terms and conditions of employment is not limited to union members.  So, employers, if you have a social media policy, make sure it does not prohibit discussions of "terms and conditions" of employment. 

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 The National Labor Relations Act protects the rights of workers who organize unions.  One thing the employer cannot do during an organization attempt is ask questions of the employees about the organizing activity and threaten the workers with fewer hours and less pay if they do form a union.  That appears to be what the Grand Hyatt corporation did when a worker tried to organize a union.  See San Antonio Express News story.  Now, they have to reinstate the employee and pay lost wages.  This came as a result of a National Labor Relation Board's complaint.  The NLRB does not accept many complaints.  When they do, the employer needs to be ready.  

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