Hunton Employment & Labor Perspectives

As a result of the National Labor Relations Board’s (the “Board”) decision in Latino Express, Inc., 359 NLRB No. 44 (Dec. 18, 2012), employers will now have greater obligations in cases where individuals are awarded lump-sum backpay.  Making good on its earlier promise, the Board held that employers must reimburse individuals for any additional federal or state income taxes, which may result when a lump-sum backpay award covers more than one calendar year.  The Board also held that employers must submit appropriate documentation to the Social Security Administration (“SSA”) so that backpay is allocated to the appropriate calendar quarters.  The Board’s decision follows, a March 2011 memorandum issued by Acting General Counsel, Lafe Solomon, in which he addressed both of these issues instructing Regions to seek a remedy with a tax component in cases involving lump-sum backpay as well as a remedy requiring employers to notify the SSA of the appropriate periods for allocating backpay.

On September 20, 2012, Administrative Law Judge Clifford H. Anderson struck down telecommunications company EchoStar Corp.’s policy prohibiting employees from making disparaging comments about it on social media sites. The NLRB judge found that the prohibition, as well as a ban on employees using social media sites with company resources or on company time, chilled employees’ exercise of their rights under Section 7 of the National Labor Relations Act (“NLRA”). The EchoStar decision comes on the heels of the NLRB’s recent ruling striking down Costco Wholesale Corp.’s policy barring employees from posting statements online that were harmful to the company’s reputation.

In recent years, the National Labor Relations Board (NLRB) and unions have placed a growing emphasis on extending the application of labor law into the social media arena.  As part of this initiative, the NLRB has adopted a strong stance against social media policies that it believes pose a threat to employees’ right to engage in protected activities under Section 7 of the National Labor Relations Act (NLRA).

As we reported earlier, the path appears (at least temporarily) clear for the NLRB’s new “quickie election” rules to take effect.  In anticipation of the effective date, Board General Counsel Lafe Solomon last week issued a memorandum to all regional directors advising them on how to process union election petitions under the new rules.  While it is too early to tell how dramatically the General Counsel’s guidance will alter the labor relations landscape, it is clear from his memorandum that the Board intends to accelerate the current union election timeline as much as possible.

Last week, the NLRB’s Acting General Counsel, Lafe Solomon, released a second report containing guidance relating to employees’ use of social media.  This report comes less than six months after the release of the NLRB’s first report on the subject in August 2011.  Like the August report, the new release summarizes a number of recent cases decided by the NLRB in which an employee was terminated, at least in part, because of his or her comments on social media websites.

The focus on social media by the National Labor Relations Board (“NLRB” or the “Board”) continues as evidenced by its recent report issued by Acting General Counsel Lafe Solomon.  The report discusses fourteen social media cases that were decided by the Board after Regional Directors submitted requests for advice to the Board’s Division of Advice.  The cases highlighted by Solomon give some insight to how the NLRB will handle various social media issues in the future.

The National Labor Relations Board (“NLRB”) regional offices addressing complaints involving employers’ social media policies must seek advice from the NLRB’s Division of Advice before taking any action. The memorandum, issued by the NLRB’s Office of the General Counsel on April 12th, added social media disputes to the list of matters that must be submitted to the Division of Advice.  The Division of Advice is responsible for issuing opinions on difficult or novel labor issues. 

On January 5, 2011, the White House announced President Obama’s intent to nominate Lafe E. Solomon to be General Counsel for the National Labor Relations Board and Terence F. Flynn to be a Board Member.