By Paul T. Trimmer and Kelly R. Kichline

Although the National Labor Relations Act, 29 U.S.C. §§ 151 et seq. (NLRA), was enacted more than 75 years ago, there is a fairly widespread misconception that only those employers which have unionized workforces are subject to its provisions. That is not so. The NLRA, and in particular, Section 7’s “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” applies to all employees. 29 U.S.C. § 157.

The National Labor Relations Board (NLRB), which is the agency responsible for administering and enforcing the NLRA, recently reaffirmed its intention to step up efforts to both educate nonunion employees about the NRLA provisions and enforce those provisions in new contexts. Because the concept of protected concerted activity is being given an ever-broader application, employers that traditionally have not been concerned with the NLRA should revisit these issues and follow recent developments.

Expanded education and outreach

The NLRB has a two-pronged approach to enhancing its education efforts. The first prong focuses on formal regulation. The NLRB has “been nearly unique among federal labor agencies in not requiring employers to post a general notice of employee rights in the workplace,” and the lack of notice resulted in employees being unaware of the protections provided by the NRLA. Chamber of Commerce v. NLRB, No. 2:11-cv-2516-DCN (D.S.C. Apr. 13, 2012). To that end, last fall, the NLRB issued a new regulation which requires employers to post a notice like the notices that employers are

required to post by other federal and state agencies, such as the Equal Employment Opportunity Commission. See 76 FR 540006, available online at: https://www.federalregister.gov/articles/2011/08/30/2011-21724/notification-of-employee-rights-under-the-national-labor-relations-act .

The content of the notice is detailed and contains several examples of activity that the NLRB has found is protected by Section 7 of the NLRA. The notice is also relatively large. The proposed poster is 11” x 17,” and it must be posted in a “conspicuous” place where the employer customarily posts personnel rules, policies, or employment notices. An employer that customarily communicates with employees about personnel rules or policies via an Internet or Intranet site is also required to post the notice “prominently” on that site, either by posting an exact copy of the poster or a link entitled “Employee Rights under the National Labor Relations Act,” which would direct employees to the NLRB’s Web site. Failing to post the notice is an independent violation of the NLRA—called an unfair labor practice—and tolls the NLRA’s six-month statute of limitations for any other alleged violation of the NLRA.

The new regulation was originally scheduled to become effective during November 2011, but has now been delayed several times as the result of widespread opposition and court challenges brought in two different federal district courts. In fact, on April 17, 2012, the U.S. Court of Appeals for the D.C. Circuit enjoined the NLRB from implementing the requirement pending resolution of an appeal of one of those district court decisions. See National Association of Manufacturers v. NLRB, No. 12-5068 (D.C. Cir.). As a result, employers are not currently obligated to post the notice, but given the potential consequences of failing to do so, if and when the posting is required, they should remain aware of potential changes. For additional information, visit the NLRB’s Web site at: http://www.nlrb.gov/poster .

While the notice posting requirement is the most dramatic example of the NLRB’s efforts to increase awareness of the NLRA, efforts are not limited to formal regulation. The second prong of the NLRB’s efforts concentrate on outreach efforts designed to educate union and non-union employees about their rights under the NLRA. In 2011, the NLRB redesigned its Web site and began a public relations campaign to ensure that enforcement efforts are publicized. “New NLRB Web site Launches Today With More Information and Greater Ease of Navigation,” available at http://nlrb.gov/news/new-nlrb-website-launches-today-more-information-and-greater-ease-navigation . In March 2012, the NLRB announced its plans to roll out a new, separate Web site aimed at nonunion employees. Although the details of the Web site remain unclear, it appears that it will focus on informing employees about their right to engage in protected concerted activity under the NLRA, and encourage nonunion employees to contact the NLRB in the event an employee believes his or her rights have been violated. As a result, even those employers that do not have unions may see an
increase in the number of charges that are filed with the NLRB.

Expanded enforcement

In addition to expanded education and outreach efforts, the NLRB has recently emphasized new enforcement strategies to prosecute alleged violations of the NLRA. One area of particularly intense interest is the employee’s use of social media and the overlapping application of employer handbook rules to employee social media activities. To that end, the NLRB’s acting general counsel, who is responsible for investigating and prosecuting alleged violations of the NLRA, has issued two guidance memorandums regarding these issues. The first, NLRB General Counsel Memorandum OM 11-74, was issued on August 18, 2011, and is available online at http://nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases . The second, NLRB General Counsel Memorandum OM 12-31, was issued on January 24, 2012, and is available online at http://nlrb.gov/news/acting-general-counsel-issues-second-social-media-report .

Indeed, over the past several years, both union and nonunion employers have seen their employees’ use of social media tools, like Facebook and Twitter, increase dramatically. Nonetheless, according to the NLRB, employers frequently maintain policies and procedures that are overly broad and that may prevent employees from legitimately discussing the terms and conditions of their employment in social media and in other contexts, including during face-to-face conversations. In this regard, the NLRB has found that even if an employer never takes enforcement action, the mere existence of a work rule that “would reasonably tend to chill employees in the exercise of their Section 7 rights” is unlawful. See 2012 General Counsel Memo at pp. 13-15 (discussing Lafayette Park Hotel, 326 NLRB 824, 825 (1998) and Lutheran Heritage Village-Livonia, 343 NLRB 646, 647 (2004)); see also The Continental Group, Inc., 357 NLRB No. 39, slip op. at 4 (2011) (access policy overbroad and unlawful); D.R. Horton, 357 NLRB No. 184 (Jan. 3, 2012) (discussing class action waivers).

For example, employers commonly maintain rules that prohibit their employees from disparaging or denigrating the company and its management. It is also well-established that an employee’s comments are generally not protected if they are mere gripes not made in relation to group activity among employees, whether the comments are made using social media or not. See Meyers Industries, 281 NLRB 882, 887 (1986). Consider, however, the following situation discussed in the acting general counsel’s recent advice memo: Eddie Employee is angry about the pay raise he just received, so he takes to Facebook, where several of his co-workers and customers are his “friends,” to vent his frustrations. Eddie posts, “Supervisor Sue is paid twice what we are paid for doing half the work we do. We should be paid more! What a scumbag!!!” His co-worker, Chris, comments on the post: “Management is a bunch of cheats! You should tell Sue to fly a kite!” Given the nature of these comments, many employers may want to take disciplinary action against Eddie and Chris for violating a non-disparagement policy. Doing so, however, may violate the NLRA because such action, and the underlying policy, may unlawfully interfere or restrain employees’ right to discuss wages, which is a term and condition of employment. See NLRB General Counsel’s emorandum OM 11-74 at pp. 3-4 (discharge of employee for calling supervisor “scumbag” unlawful because it occurred during lawful discussion of work conditions); but see NLRB General Counsel’s Memorandum OM 12-31 at pp. 6-8 (discharge of employee who directed expletive and personal attack at supervisor not protected because it was a personal gripe).

With the growing interest in protecting confidential business information, many employers require all employees, from executives to line level customer service representatives, to sign comprehensive confidentiality and non-disclosure agreements which prohibit discussion and disclosure of confidential financial information. If those policies are overly broad or imprecisely worded, the policies could be found to violate the NLRA because they prohibit employees from disclosing and discussing their pay and other terms and conditions of their employment. Indeed, the First Circuit Court of Appeals recently considered such a situation in NLRB v. Northeastern Land Services, Ltd., 645 F.3d 475 (1st Cir. 2011). In that case, an employer that did not have a union required all of its employees to sign confidentiality agreements which provided that “the terms of this employment, including compensation, are confidential.” Id. at 478. While noting that legitimate confidentiality agreements would survive scrutiny, the First Circuit enforced the NLRB’s finding that the agreement was overly broad, and therefore unlawful, because it prohibited an employee from discussing compensation and other terms and conditions of employment. Id. at 480-83.

Finally, in Parexel International, 356 NLRB No. 82 (2011), the NLRB found that an employer may commit an unfair labor practice even when an employee has not actually engaged in protected concerted activity, if the employee’s conduct could be characterized as a precursor to protected concerted activity. As the NLRB explained, “if an employer acts to prevent concerted protected activity—to ‘nip it in the bud’—that action interferes with and restrains the exercise of section 7 rights and is unlawful without more.” Id. at slip. op. 4. The decision is unique because it appears to erode the requirement that activity must be concerted in order to be protected, particularly when the activity concerns a discussion about wages.

Conclusion

The cases and issues described above are just a few examples of the ongoing developments in this ever-changing area of the law. The NLRB’s recent activities are a reminder to all employers—employers with unions as well as those without—that they should review their current policies and practices to ensure compliance with the NLRA.

Paul T. Trimmer is a partner in Jackson Lewis LLP’s Las Vegas’ Office. He can be reached at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it

Kelly R. Kichline is an associate at Jackson Lewis in Las Vegas. She can be reached at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it

Uniformed Service Members: The Oft-Overlooked Protected Class

By Mattew L. Durham

Race discrimination. Religious discrimination. Gender discrimination. National origin discrimination. These are what generally come to mind when employers think of workplace discrimination. Employers implement policies and procedures against these categories of discrimination and conduct workplace training to root out or prevent such discrimination from occurring. However, in addition to these well-known categories of workplace discrimination, which are prohibited by Title VII of the Civil Rights Act of 1964, there is another category of prohibited discrimination that is often overlooked—discrimination based on military service. Discrimination based on military service is prohibited by the Uniformed Services Employment and Reemployment Rights Act (USERRA or the Act). Some employers may not be aware of USERRA and its prohibition of military service discrimination. Many who are aware may not give much thought to it. They should. According to the United States Bureau of Labor Statistics, since the attacks of September 11, 2001, approximately 2.4 million men and women have served in the military and subsequently returned to civilian life. Of these veterans, approximately two-thirds are under 35 years old. The number of veterans returning to the civilian workforce will only increase as the drawdown of U.S. forces in Iraq and Afghanistan continues. As such, now more than ever, it is imperative that employers be familiar with USERRA and implement policies and procedures to ensure compliance therewith.

What is USERRA?

Congress enacted USERRA in 1994 to encourage non-career service in the uniformed services, which consist of the Armed Forces, the Reserves, the National Guard, the commissioned corps of the Public Health Service, and any other category of persons designated by the President in time of war or emergency. 38 U.S.C. § 4303(16). USERRA does this by significantly strengthening and expanding the employment and reemployment rights of all members of the uniformed services.

USERRA applies to all employers

USERRA applies to all employers, large and small, public and private. The Act defines “employers” broadly, to include the Federal Government, state and local governments, and “any person, institution, organization, or other entity that pays salary or wages for work performed or has control over employment opportunities.” 38 U.S.C. § 4303(4)(A). Unlike Title VII, there is no minimum number of employees that an employer must employ in order to be bound by USERRA.

USERRA prohibits military service discrimination

USERRA prohibits virtually all forms of workplace discrimination against members of the uniformed services. USERRA prohibits employers from denying service members (1) initial employment, (2) reemployment, (3) retention in employment, (4) promotion, or (5) any benefit of employment on the basis of their membership in a uniformed service. 38 U.S.C. § 4311(a). USERRA prohibits discrimination not only against current and former members of the uniformed services on the basis of that membership, but also discrimination against persons who have applied to be members of the uniformed services on the basis of that application.

An employer violates USERRA’s prohibition of military service discrimination when the employee’s membership in the uniformed services is a motivating factor in the employer’s adverse employment action. 38 U.S.C. § 4311(c). When the company official who makes the decision to take an adverse employment action is personally acting out of hostility to the employee’s membership in or obligation to a uniformed service, a motivating factor obviously exists. The United States Supreme Court recently held that a motivating factor also exists where the official has no personal discriminatory animus but is influenced by previous company action that was the product of a like animus in someone else. Staub v. Proctor Hospital, 131 S.Ct. 1186 (2011). In Staub—the first USERRA case to reach the Supreme Court—the plaintiff sued his employer under USERRA, alleging that his termination was motivated by hostility toward his military duties. As a member of the United States Army Reserve, plaintiff was required to periodically attend training. The evidence showed that two of plaintiff’s supervisors were hostile towards plaintiff’s military obligations because of his absences. One of plaintiff’s supervisors issued a corrective action notice to plaintiff and the other reported plaintiff for violating the corrective action notice. Based upon the supervisor’s accusation and a review of plaintiff’s personnel file, the president of defendant’s human resources department terminated plaintiff. Plaintiff did not argue that the human resources president was motivated by hostility toward his military obligations, but that his supervisors were, and that they influenced the president’s decision to terminate him. The jury found that plaintiff’s military status was a motivating factor in defendant’s decision to terminate plaintiff. However, the Court of Appeals for the Seventh Circuit reversed, holding that defendant was entitled to judgment as a matter of law because the undisputed evidence showed that the president’s termination decision was not “wholly dependent” upon the advice of the two supervisors.

The United States Supreme Court reversed, holding that an employer is liable under USERRA if (1) a supervisor performs an act motivated by anti-military animus that is intended by the supervisor to cause an adverse employment action, and (2) that act is a proximate cause of the ultimate employment action. In upholding the so-called “cat’s paw” theory of employer liability (where a plaintiff can hold an employer liable for the animus of a supervisor who was not charged with making the ultimate adverse employment decision but, nonetheless, influenced the decision), the Supreme Court may have significantly increased employers’ exposure to employment discrimination claims.

Hostile work environment

Historically, federal courts were reluctant to recognize hostile work environment claims under USERRA. District courts were divided on the issue and only a few circuit courts assumed that hostile work environment was a legitimate claim under USERRA. Then, on March 22, 2011, the United States Court of Appeals for the Fifth Circuit held that, unlike Title VII, USERRA did not provide for a hostile work environment claim because the statute did not include the phrase “the terms, conditions, or privileges of employment” in its definition of “benefits of employment.” Carder v. Continental Airlines, 636 F.3d 172 (5th Cir. 2011). Nine months later, Congress enacted the VOW to Hire Heroes Act of 2011, which amended USERRA to include the same language used in Title VII. See 38 U.S.C. § 4303(2). As a result, USERRA was expanded to include hostile work environment claims, and now has the same standard for such claims on account of military status as that governing Title VII and other employment discrimination laws.

Retaliation

In addition to prohibiting discrimination based on military service, USERRA also prohibits retaliation. USERRA prohibits employers from retaliating against anyone (whether or not they have performed military service) who (1) files a complaint under USERRA, (2) testifies, assists, or otherwise participates in an investigation or proceeding under USERRA, or (3) exercises any right provided by USERRA. 38 U.S.C. § 4311(b).

Damages

A number of remedies and damages are available to a successful USERRA plaintiff. These include: reinstatement, back pay, restored benefits, retroactive seniority, pension adjustments, corrected personnel files, restored vacation, and attorney’s fees and costs. In addition, courts may award double damages where the employer’s violation of USERRA was willful. Courts may not, however, impose punitive damages.

Statute of limitations

There is no statute of limitations on filing a complaint or claim for discrimination under USERRA, and USERRA expressly precludes the application of any state statute of limitations. 38 U.S.C. § 4323(i). As such, a claim under USERRA may be brought at any time. However, if an individual unreasonably delays asserting his or her USERRA rights, and that unreasonable delay causes prejudice to the employer, the equitable doctrine of laches may be asserted to bar the claim.

With an increasing number of uniformed service members joining the civilian workforce and the recent increase in employers’ exposure to claims for military service discrimination, understanding and complying with USERRA is more important than ever. Employers should review and revise, if necessary, their policies and procedures regarding anti-harassment, hostile work environment, and equal employment opportunities to include uniformed service members as a protected class. They should develop and provide reporting procedures for USERRA-covered workplace complaints and quickly investigate any complaints that arise. And they should make sure that the ultimate decision-maker does not “rubber stamp” the decisions of others, but instead exercises independent judgment, conducts a meaningful investigation, and ensures all adverse employment actions are well supported and documented.

Matthew L. Durham is an attorney at Payne & Fears LLP. His practice focuses on employment and commercial litigation. He can be reached at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it or (702) 382-3574.