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Concerted Activity via Social Media: What's Not to "Like"?

7/22/2021

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What is the National Labor Relations Act?

The National Labor Relations Act (NLRA) expressly gives employees the right to self-organize, form, join, or assist labor organizations, bargain collectively through representatives of their own choosing, and engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

​An employer who fires, suspends, or otherwise penalizes an employee for taking part in protected group activity is liable under the Act
Employees discussing national labor relations act and social media activity in the workplace

Does the NLRA consider activity on social media "concerted activity"? 

Regardless of whether an employee is represented by a union, Section 7 of the Act protects an employee’s right to come together with coworkers to improve their working conditions--including when they come together online via social media websites like Facebook, Instagram, Snapchat, and others.

​Not only can a social media post be concerted activity, but so too can a comment or a “like.”

However, not all social media activity is protected by the NLRA. To get the Act’s protection, your statement must have some relation to group action, or seek to initiate, induce, or prepare for group action, or bring a group complaint to the attention of management.
Phone screen with social media apps potentially protected by the national labor relations act

What type of social media activity is not protected by the NLRA?

Statements that are egregiously offensive or knowingly and deliberately false are not protected.

Public disparagements of the employer’s products or services without relating those complaints to any labor controversy are similarly not protected, nor are individual complaints about some aspect of work.
​

That is not to say that individual employees cannot engage in protected concerted activity.

A single employee may engage in concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action.
Employees discussing the national labor laws act and how it protects them
What constitutes a statement so egregious that it loses the Act’s protection depends on many factors and is subject to a balancing test between the employee’s right to engage in concerted activity and the employer’s right to maintain order, respect, and a workplace free from discrimination.

For example, the Board has found the following language not too egregious or abusive:

“Bob is such a NASTY MOTHER F***ER don’t know how to talk to people! ! ! ! ! ! F**k his mother and his entire fu**ing family! ! ! ! What a LOSER! ! ! ! Vote YES for the UNION! ! ! ! ! ! !

​National Labor Relations Board v. Pier Sixty, LLC
, 855 F.3d 115 (2d Cir. 2017) (profanities omitted).
Employee posting on social media about his anger towards customers during the pandemic
In agreeing with the Board, the Second Circuit reasoned that, although the employee’s message was “dominated by vulgar attacks,” the subject matter of the message included workplace concerns that was made in the midst of employer hostility toward employees’ union activities.
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Thus, this “outburst” was “not an idiosyncratic reaction to a manager’s request but part of a tense debate over managerial mistreatment.” Also of importance, the employer consistently tolerated profanity among its workers, and the outburst was not in the immediate presence of customers or disruptive to a work event.
Board deciding that a post from an employee is considered disloyal
Even where an employee does not directly disparage the employer’s products or services, if the employee insults the employer’s customers, the Board will find the statement similarly disloyal and thus unprotected.

​
The Board recently found the below language disloyal:
"This is a repost from Trader Joe’s employees because I agree 100: Just because we are open doesn’t mean we are here for you to spend your time BROWSING around. We are designated as an ESSENTIAL SERVICE. We are not here for you because you have nothing else to do. We are not here because you feel like getting out of the house for a while. We are in a STATE OF EMERGENCY. This is NOT A VACATION! Every customer who walks in our doors PUTS US AT RISK. We really don’t want to be here, but we realize that we are needed. YOU don’t see how many times a day we wash and sanitize our hands to try to keep ourselves safe. YOU don’t see our upset co-workers in the break room struggling to keep their composure. YOU don’t see our spouses who worry about us every minute we are at work and who are our strength when we get home. We have our jobs to do and we realize the IMPORTANCE OF OUR JOB TO YOU. The LEAST you can do is come in with a sense of purpose, get what you need, and get yourselves home."
NLRB GC Memo re Trader Joe’s, No. 16-CA-261558 (Apr. 28, 2021).

The Board found the statement so “disloyal, reckless, or maliciously untrue” that it lost the Act’s protection.

Therefore, while employees generally have great latitude in expressing joint concerns relating to the terms and conditions of their employment, they must be careful not to make statements that could lose the Act’s protection.

Are you facing discrimination at work because of something you posted on social media? 
ASK US ABOUT YOUR CASE

The information you obtain on rodtannerlaw.com or through any link on this site is not, nor is it intended to be, legal advice. Every legal situation is different and you should consult an attorney for individual advice regarding your own situation. Please see the Terms of Use for more information.
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2021 Updates About Labor Law, Labor Arbitration, and the NLRB

7/19/2021

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Labor Law and Labor Arbitration Updates

On June 21, 2021, Rod Tanner of Tanner & Associates shared insights in a panel discussion focused on Labor Law Developments and Predictions for the Future. 

If you would like to watch the video, CLICK HERE. If you do not already have access to the video, request video access by clicking the button below and sending us an email. 
REQUEST VIDEO ACCESS

NLRB Unfair Practice Investigations and Trials

The Center for American and International Law also discussed NLRB investigations and trials during the discussion about labor law updates on June 21, 2021. 

If you would like to read the PDF document that expands on this topic in depth, CLICK HERE. This PDF also includes insights from the Labor Law Developments and Predictions for the Future panel.

If you do not have access to this PDF, request access by clicking the button below to send us an email and we will send you the password. 
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What Every Employee Should Know About the NLRA

7/16/2021

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What is the NLRA? 

Enacted in 1935, the National Labor Relations Act is a federal law that grants employees the right to form or join unions; to engage in protected, concerted activities to address or improve working conditions; or to refrain from engaging in these activities.

The National Labor Relations Board is the federal agency tasked with enforcing the NLRA. Put simply, the Act prohibits certain employers from engaging in unfair labor practices.
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Does my workplace have to be unionized for me to be protected under the NRLA? 

No. It is a common misconception that the NLRA applies only to unionized workplaces.

The Act applies to most private sector employers. It expressly does not apply to federal, state, or local governments; employers who employ only agricultural workers; and employers subject to the Railway Labor Act, nor does it apply to independent contractors or supervisors (subject to certain exceptions).

Because employees of non-unionized workplaces are still protected by the Act, this means they are equally protected in sharing information, signing petitions, and seeking to improve terms and conditions of their employment.

​Under certain conditions, and to varying degrees, employees are also able to strike and picket.
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How does the NLRA protect employees?

Employees are protected from unlawful acts of both their employers and any union that represents them. Neither employers nor unions may restrain or coerce employees exercising their rights under the Act. The employer and union are obligated to bargain in good faith with each other over the terms and conditions of employment.

Specifically, Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”

Section 8(a)(1) of the Act makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the Act. For example, employers may not threaten employees with adverse consequences if they support a union or engage in protected, concerted activity; promise employees benefits if they reject the union; coercively question employees about their own or coworkers’ union activities or sympathies; etc.
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What do I do if I believe my employer has violated the NLRA?

If you believe your NLRA rights have been violated, you may file a charge against an employer (or labor organization) with the NLRB subject to the six-month statute of limitations.

The charge is then investigated by Board agents who gather evidence and may take affidavits from parties and witnesses before submitting their findings to the Regional Director or NLRB attorneys at the Division of Advice in Washington, D.C.

In certain circumstances, the Regional Director may petition the appropriate U.S. District Court for temporary injunction orders to restore the status quo. Critically, it is illegal for your employer to fire, demote, harass, or otherwise retaliate against you for reporting an issue or filing a charge with the NLRB.

Employees may also file a grievance pursuant to an established grievance and arbitration procedure contained within the parties’ collective bargaining agreement, but whether an employee can file both a charge with the NLRB and a grievance, and which one supersedes the other, is a nuanced issue that can present many complications for employees.

Has your employer violated the NLRA?
ASK US ABOUT YOUR CASE

The information you obtain on rodtannerlaw.com or through any link on this site is not, nor is it intended to be, legal advice. Every legal situation is different and you should consult an attorney for individual advice regarding your own situation. Please see the Terms of Use for more information.
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President Biden Shines a Light On Noncompete Clauses with New Executive Order

7/12/2021

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Biden Administration Asks Federal Trade Commission to Limit Restrictive Clauses in Recent Executive Order

Many of our recent blogs have focused on noncompete clauses in the workplace, particularly because of how prevalent noncompete clauses are in employment contracts and how limiting they can be on workers’ future career opportunities. We've discussed Noncompete Clauses Validity in Texas and Three Lesser-Known Complications of Noncompete Agreements in the Workplace — and it turns out our firm is not alone in our focus on these restrictive clauses.
Biden Administration issued an executive order on July 9, 2021, that calls on the Federal Trade Commission to adopt rules limiting the use of noncompete clauses.
The Biden Administration recently issued an executive order that addresses noncompete clauses, unnecessary occupational licensing, and disclosing worker pay information under certain circumstances.
Last Friday (July 9, 2021) President Biden issued an executive order that, among nearly 72 other provisions, calls on the Federal Trade Commission to adopt rules limiting the use of noncompete clauses.

White House Press Secretary Jen Psaki said earlier last week of noncompete clauses: “[R]oughly half of private sector businesses require at least some employees to enter noncompete agreements, affecting over 30 million people. This affects construction workers, hotel workers, many blue-collar jobs, not just high-level executives.”
Construction worker, contract employee, noncompete clause
Noncompete agreements affect over 30 million Americans, from high-level executives to construction workers.
Among the other provisions aimed at promoting economic competition is a limitation on unnecessary occupational licensing requirements, as nearly 30 percent of jobs in the U.S. require a license, and overly burdensome licensing can prevent people from getting jobs.

Biden will further encourage the FTC and the Department of Justice to work together to limit employers’ rights to share worker pay information in ways that could negatively impact workers looking for better paying jobs.

​Whether these orders will withstand legal challenges remains to be seen, particularly given occupational licensing requirements and noncompete agreements are regularly determined by states and not the federal government. Supporters of noncompete agreements strongly believe they protect trade secrets and investments and will likely push back on attempts to prohibit them in the workplace.
Federal Trade Commission writing final language for limiting noncompete clauses per Biden Administration's request.
The Biden Administration has called upon the Federal Trade Commission to adopt rules limiting the use of noncompete clauses and has positioned them to draft the final language.
The Biden administration has positioned the FTC to draft the final language. FTC Chair Lina Khan has previously voiced support for federal rules restricting noncompete clauses, though, noting they “deter workers from switching employers, weakening workers’ credible threat of exit, and diminishing their bargaining power.”

Nonetheless, Biden’s executive order is a significant shift from current precedent.

​Our firm will be keeping a close eye on further developments, so stay tuned for future posts discussing the impact of the orders and any legal challenges.

Are you concerned about the noncompete clause in your employee contract?

ASK US ABOUT YOUR CASE

The information you obtain on rodtannerlaw.com or through any link on this site is not, nor is it intended to be, legal advice. Every legal situation is different and you should consult an attorney for individual advice regarding your own situation. Please see the Terms of Use for more information.
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The Lesser-Known Complications of Non-Compete Agreements in the Workplace

7/8/2021

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One of our recent blogs discussed the validity of non-compete clauses in Texas, but there are often complications that can be easily overlooked. Read on to learn about lesser-known complications of non-compete agreements that every employee should be aware of before signing an employment contract in Texas (or elsewhere). 
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Non-Compete Agreements and ​Social Media

What if an employee develops contacts for her employer through the use of a social media account like LinkedIn? If she leaves the employer subject to a non-compete agreement, does she breach the agreement by using those LinkedIn connections she made to solicit business for her new employer?

Unsurprisingly, this is a nuanced issue with many fact-dependent potential outcomes. The Texas Supreme Court has held that restrictions preventing employees from soliciting any of the employer’s customers worldwide, including those with whom she had no dealings during her employment, are not reasonably necessary to protect the employer’s business interest of preventing the employee from taking her clients with her to a competitor.
Employee using social media to find new employers despite a non compete clause
If someone uses social media to solicit new business after leaving a job where they had a non-compete agreement, they may be subject to non-compete complications.
However, when an employer seeks to protects its confidential business information as well as its customer relations, broad non-solicitation restrictions are reasonable. If the employee above has access to proprietary information that she could use to help her new employer, Texas courts may very well uphold a broad non-compete agreement, or non-solicitation agreement, as reasonable.
​
Even if the employee makes every attempt to avoid actively using the former employer’s confidential information, Texas courts acknowledge the extreme difficulty former employees face in not indirectly applying some of that confidential knowledge in her position with the new employer.

The employee would have to establish enough evidence that she can go into competition in the same market and not use the information she acquired with the former employer to rebut the presumption that the employer suffers irreparable injury from a highly trained employee’s continued breach of a noncompete agreement.
Female independent contractor looking at non-compete agreement in Texas
Independent contractors can also face complications with non-compete agreements.

What About Independent Contractors and Non-Compete Agreements? 

Independent contractors undertake specific work for another using his or her own means and methods without submitting to the control of the other person as to the details of the work. It is not unusual for independent contractors to be subject to non-compete and non-solicitation agreements.

A major benefit to a worker’s status as an independent contractor is the freedom that comes with that classification, so workers may be surprised to learn that they can be restricted from competing with a business they work for as if they were an employee. Thus, an agreement that is enforceable against an employee is enforceable against an independent contractor as well.
What is the blue picture rule in Texas? Noncompete clause agreements.
Both Independent Contractors and Employees should be aware of the "Blue Pencil Rule" in Texas.

What is the "Blue Pencil Rule"? 

Judges in Texas often invoke the so-called “blue pencil” rule to make over-broad noncompete clauses enforceable.

In fact, the Texas Business & Commercial Code actually requires courts to reform restrictions if reformation is necessary to make the restrictions enforceable. However, employers are penalized if reformation is necessary, as the Act prohibits the employer from recovering its actual damages, at least until reformation occurs.

The Act also provides that an employee may recover reasonable attorney’s fees in defending against a restrictive covenant if (1) the employee establishes the employer knew at the time the agreement was executed that the agreement was overly broad and (2) the employer seeks to enforce the agreement to a greater extent than is necessary to protect its goodwill or business interest.
Employer and employee discussing non compete clause complications in Texas
There are a lot of lesser-known complications that can arise with non compete agreements. Discuss your non compete with a lawyer before signing to avoid possible future disagreements with an employer.

Defenses Against Non-Compete Agreements in Texas

Even if the noncompete agreement is valid and enforceable, the employee may have defenses under Texas law that would prevent the employer from prevailing in a suit to enforce. The employer may have unclean hands or may not have suffered irreparable harm.

Conclusion

There are many other issues that may arise with noncompete agreements. Employees would be wise to review any noncompete clause and discuss its terms with an experienced attorney.

Do you have questions about a non-compete clause in your employee contract? 

Are you facing difficulties due to a previous non-compete agreement?
ASK US ABOUT YOUR CASE

The information you obtain on rodtannerlaw.com or through any link on this site is not, nor is it intended to be, legal advice. Every legal situation is different and you should consult an attorney for individual advice regarding your own situation. Please see the Terms of Use for more information.
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Discrimination in the Workplace: Is There Recourse for Nonbinary Individuals Facing Discrimination at Work?

7/1/2021

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Does Title VII protect nonbinary individuals from experiencing discrimination at work?

Nonbinary people have a gender identity that does not fit into the male/female binary. According to The Trevor Project’s 2019 National Survey on LGBTQ Youth Mental Health, one in four LGBT youth identify as nonbinary.

The number of nonbinary individuals in the workplace is thus on the rise, but they continue to experience significant rates of discrimination in the workplace and in the hiring process.

Many nonbinary individuals are repeatedly misgendered, but harassment law does not reach accidental or isolated remarks, nor does it generally require the use of any idiosyncratic pronouns a person might request. See Jessica A. Clarke, They, Them, and Theirs, 132 Harv. L. Rev. 894, 957-58 (2019). Harassment generally must be severe or pervasive to be actionable.

The law surrounding LGBT protections is constantly evolving. In a landmark decision, the Supreme Court in Bostock v. Clayton County held that workplace discrimination based on an individual’s sexual orientation or gender identity is unlawful discrimination because of sex under Title VII of the Civil Rights Act of 1964. Justice Gorsuch wrote in the majority opinion: “An individual’s homosexuality or transgender status is not relevant to employment decisions.”

​Because the Court used the binary definition of sex as male or female to demonstrate that discrimination against homosexual or transgender individuals involved in sex discrimination, it is unclear whether Title VII applies to nonbinary or gender nonconforming individuals.
Employees discussing discrimination against nonbinary employees in the workplace and how they can report discrimination
Since harassment law doesn't necessarily cover isolated remarks or require use of idiosyncratic pronouns a person may request, it is important to talk about nonbinary employee rights as a team in the workplace.

Is there any recourse for a nonbinary individual who's facing discrimination in the workplace? 

There is a compelling argument that there is no coherent way to interpret the Bostock v. Clayton County decision as excluding nonbinary individuals from protection, since the decision applies with equal force to nonbinary people as it does to transgender men and women.

A person is understood as nonbinary by virtue of sex-based characteristics, so when an employer discriminates against someone because of their nonbinary status, it inevitably discriminates because of sex. Without express application to nonbinary individuals, though, there remains a potential loophole for employers to permissibly discriminate against nonbinary individuals without technically implicating sex discrimination.

The EEOC has likewise ruled that Title VII's prohibition against discrimination based on a person's sex includes gender identity and sexual orientation. The federal agency has further provided guidance about how employers may fulfill EEO-1 reporting obligations for nonbinary employees, providing additional space to explain if any employees identify as nonbinary.
Group of employees discussing the need for inclusion in the workplace and current legal protections in place for nonbinary employees.
Nonbinary employees are seeing more protections under federal and state laws, but the potential for discrimination loopholes shows that there's need for more discussion and expansion of protection to nonbinary employees.

Is it possible that workplace discrimination protections will expand to include nonbinary employees in the future?

Lower courts are more frequently discussing the need to expand discrimination protection to nonbinary employees. The Sixth Circuit in EEOC v. R.G. & G.R. Harris Funeral Homes recently stated “discrimination because of a person’s transgender, intersex, or sexually indeterminate status is no less actionable than discrimination because of a person’s identification with two religions, an unorthodox religion, or no religion at all. And ‘religious identity’ can be just as fluid, variable, and difficult to define as ‘gender identity;” after all, both have ‘a deeply personal, internal genesis that lacks a fixed external referent.”

22 states currently extend protections based on gender identity, although Texas is not one of them. The most prominent interpretation to encompass nonbinary individuals is the New York City Human Rights Law’s gender discrimination provision that expressly reaches individuals who are nonbinary, gender nonconforming, and intersex.

Nonbinary individuals are seeing more protections under federal and state laws than ever before, but there are many loopholes employers can find to continue discriminatory practices in the workplace. Employees should keep a close eye on legal developments in the discrimination field, as the landscape is ever-changing—and hopefully for the better.

Are you experiencing discrimination in the workplace as a nonbinary employee? 

Have you been treated differently than other employees because of your gender?
ASK US ABOUT YOUR CASE

The information you obtain on rodtannerlaw.com or through any link on this site is not, nor is it intended to be, legal advice. Every legal situation is different and you should consult an attorney for individual advice regarding your own situation. Please see the Terms of Use for more information.
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The information you obtain at this site or through any link on this site is not, nor is it intended to be, legal advice. Every legal situation is different and you should consult an attorney for individual advice regarding your own situation.  Please see the Terms of Use for more information.


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