Labor Board Proceedings and Practice

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As a matter of federal law, employers can require employees to agree to arbitrate any employment dispute.  But, can that arbitration agreement force an employee to arbitrate only individual claims, not class (or collective) claims?  Recently, the National Labor Relations Board said NO.  Click here for the Board’s ruling.

This ruling appears at odds with a ruling by the United States Supreme Court in AT&T Mobility LLC v. Conception.  There, the Supreme Court considered a California state law that invalidated any arbitration agreement that included a mandatory waiver of class claims.  The Supreme Court noted that the right to pursue class claims is a procedural right, not statutory, and overturned the California law.  Some employers then adopted arbitration agreements that included waivers of an employee’s ability to pursue class or collective actions. 
Continue Reading Labor Board Rules that Arbitration Agreements Forbidding Class Arbitration is Unlawful

Social media sitesThe NLRB’s Division of Advice recently issued memoranda in several different cases, showing that not all activity by employees on social media sites constitute protected activity.  These reports show that the Labor Board, like many employers, struggle with what is “protected concerted activity” – and thus protected from any employer discipline – and what are mere individual gripes – and most likely not protected.

The NLRB’s attempt to provide guidance in these memoranda does show the Labor Board’s adoption of a more realistic view of what is protected activity on social media than some had feared (and more realistic than some critics had charged).  In short, “protected concerted activity” even on social media must show more than an individual employee’s private complaint or gripe about her/his employer. The employee must be expressing group complaints (acting “with or on the authority of” other employees) and generally must be interacting with employees in such expression. Forbes.com posted a good article illustrating the differences. In one instance, the NLRB even examined whether a particular employee’s Facebook wall included ‘friends’ who were co-workers.
Continue Reading Labor Board Report Shows Its Struggles with the Realities of Social Media

From the Bass, Berry & Sims Blog Network
From the Bass, Berry & Sims Blog Network

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