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Lafe Solomon, Acting General Counsel of the National Labor Relations Board, spoke on June 11, 2012, at the annual meeting of the Connecticut Bar Association and made a number of comments on issues of concern to employers.
Social Media Policies. Solomon said there are now about 100 charges pending at the Board related to social media issues. The Acting General Counsel has taken an active role in handling these cases, both by having decisions about them centralized in the Division of Advice and by issuing three public memoranda wherein he discusses what social media actions are protected by the National Labor Relations Act and the kinds of employer policies that may violate the Act. Solomon pointed out that while the Board does not issue advisory opinions, his most recent memorandum includes the full text of an employer’s social media policy that the Division of Advice found to be lawful in its entirety.
Solomon acknowledged that the same memorandum contradicts advice that some Regional Directors previously gave to employers that they could cure potential faults in social media policies by including a savings clause telling employees the policy would not prohibit discussions of wages, hours and working conditions or other activities protected by the Act. This point also is discussed in Littler’s recent ASAP. Solomon said that he and others at the Board’s national office in Washington, D.C. decided that “a savings clause no longer protects an unlawful provision” in such a policy.
At-Will Employment Statements. Solomon also addressed the controversial complaint issued earlier this year by the Board’s Region 28 in Phoenix, Arizona. The complaint alleged that a number of the employer’s rules and policies were illegal, including an at-will employment statement similar to those used by many employers throughout the country. According to the complaint, the following required employee acknowledgment statement was unlawful:
I understand my employment is "at will." This means I am free to separate my employment at any time, for any reason, and [the company] has these same rights. Nothing in this handbook is intended to change my at-will employment status. I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status except for a written statement signed by me and either [the company’s] Executive Vice-President/Chief Operating Officer or [the company’s] President.
Asked whether he agreed with the position taken by Region 28 in this case, Solomon said he welcomed the opportunity to clarify this “totally misunderstood” issue. He said he had not approved the complaint when it was issued, but became aware of it later. He said in his view Section 7 of the Act would not be violated if an employer merely tells its employees that they are employed at will. He said the remaining portion of the employer’s statement is wrong, however, because it does not acknowledge that if employees are unionized and a collective bargaining agreement is agreed to, it may have a “just cause” provision limiting the at-will status of employees. Solomon also faulted the language for implying “the futility of unionization.” Solomon suggested it would be legal for a policy to say that employment is at-will and that its at-will nature cannot be changed by any oral statement. Solomon said the case has been settled, so it will not result in a formal decision concerning the Board’s theory in the case.
Class Action Waivers. Solomon acknowledged that many observers believe there is a conflict between the Board’s D.R. Horton decision, which held that an employer violates Section 7 of the Act by having employees agree to arbitrate claims against the company under procedures that do not permit class actions, and the U.S. Supreme Court decision in AT&T Mobility v. Concepcion, where the Court held that the Federal Arbitration Act authorizes precisely such arbitration agreements. Solomon said he sees no conflict between the decisions, because in his view the NLRA trumps the Federal Arbitration Act, as “the FAA deals with state law substantive rights” whereas “section 7 establishes federal substantive rights.” He did agree that most federal courts that have considered the issue thus far have rejected the Board’s viewpoint and held that the Concepcion decision overrides D.R. Horton.