In July, the California Supreme Court issued its opinion in Troester v. Starbucks Corp., holding that the federal wage laws that excuse companies from paying workers for de minimis work, i.e. small amounts of time that are difficult to record, do not apply under the California wage and hour standards.

The de minimis rule

As we all know, the NLRB has been working hard in recent years to expand its reach beyond the union workforce – striving to make its decisions and guidance just as relevant to the non-union employer in an age where unions are on the decline.  Recent NLRB decisions have found employers liable for unfair labor

Everybody knows that an activist National Labor Relations Board (NLRB) expects a lot of all employers nowadays, union and non-union. One of the areas under the greatest NLRB scrutiny are time-honored, well-worn policies that have existed in employee handbooks for years:  don’t disparage your employer; don’t say anything damaging about the company; don’t harm the business’s reputation or goodwill in the marketplace.

The reason for these kinds of policies is obvious and intuitive: if you work here, you owe your employer a common law duty of loyalty. And loyalty means, in part, not publicly slamming your employer.

Most everyone also knows that the NLRB has taken aim at these kinds of policies because they arguably discourage employees from exercising their rights under Section 7 of the National Labor Relations Act. Section 7, broadly speaking, protects employees’ rights to organize and to work for their “mutual aid and protection,” which necessarily means being able to talk about working conditions. The NLRB (and administrative law judges applying NLRB rules) has held over and over in the past several years that employment policies prohibiting employee speech that is “damaging” to or “disparaging” of a business are overbroad – sure, the policy would prohibit some things that are clearly unlawful, like true defamation, but it would also prohibit publicizing a legitimate beef. If you don’t like your pay and you want to post “my employer is cheap” on Facebook, that statement is probably damaging to a company’s reputation – but it’s also clearly protected speech under the NLRA.

The fact is, many employers still have these kinds of policies in place. So what happens if you’re one of those employers, you read this blog, and you remove the offending policy from your employee handbook before anybody complains or notices? It’s like a tort suit without damages – no harm, no foul, right?

Wrong, at least according to one NLRB administrative law judge in Chicago a couple of days ago. A private bus company, Latino Express, maintained an employee disciplinary policy from July 2012 through April 2014 that made certain offenses immediate cause for termination. On the “don’ts” list were “[a]ny action that jeopardizes company contracts or loss of revenues” and “[a]ny activity which causes harm to the operations or reputation of Latino Express Bus Company.” The company removed those rules from its handbook in April 2014 “once the rules were brought to [its] attention,” and it even posted the revised policy on employee bulletin boards.  A union representing workers at the company filed an unfair labor practice charge over the fact that the company had maintained allegedly unlawful policies (the ones that had already been rescinded), and the case went to an administrative trial.
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In what some may consider a stunning decision, the NLRB recently held in Care One at Madison Avenue, LLC, 361 NLRB No. 159, that an employer’s enforcement of its workplace violence policy violated its employees’ rights under Section 7 of the National Labor Relations Act.

After completing a recent union election, Care One issued

If you think an employer has an absolute right to control its own email systems, think again – at least according to the National Labor Relations Board. On December 11, 2014, the NLRB declared that employees may generally use their employers’ email for union organizing purposes – and that employers who generally prohibit employees from using work email for these purposes, or for all non-work purposes, violate federal labor law. The case, Purple Communications, Inc., 361 NLRB No. 126 (2014) is a stunning about-face from the NLRB’s prior precedent in The Register Guard, 351 NLRB No. 70, which held that employers may lawfully bar employees’ nonwork-related use of email systems.

The case is remarkable in that, now, employers’ property rights in their own electronic systems – systems they pay for, create, maintain, and are liable for – are trumped by employees’ rights to proselytize in favor of labor unions. Even more remarkably, a neutral employer policy prohibiting employee email use for all non-work purposes now violates federal law because at least one among “all” purposes could include union organizing.

Although the rights of workers to express and solicit support for unions have long been sacred under federal law, the NLRB has created an expansive presumption under federal labor law that “employees who have rightful access to their employer’s email system in the course of their work have a right to use the email system to engage in Section 7-protected communications on nonworking time” – and, unavoidably, that employers have exceptionally limited rights to control that use.

Lest there be any doubt that the NLRB’s holding is far-reaching and creates substantial new burdens on employers, the NLRB also made clear that “it will be the rare case where special circumstances [will] justify a total ban on non-work email use by employees.”
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