In a flurry of recent National Labor Relations Board decisions under the Obama administration, the Board has made it almost impossible for employers to tell whether or not they have lawful social media policies, employment-at-will policies, no-access policies, confidentiality polices, or the right to enforce many other employment policies believed - until now - to be normal and routine for regulating employee behavior. On Dec. 5th, Neal Gerber Eisenberg labor and employment lawyers identifed the most troubling of these areas and will provide practical guidance on how to reduce or eliminate the risk of a costly unfair labor practice charge - even in a union-free workplace - while still effectively maintaining control of the workplace. Among the specifics covered: • Social media policies, including non-disparagement statements, disclosure of "confidential" information, and more • Employment-At-Will Statements • Confidentiality of Employee Investigations • Limiting Off-Duty Access to Company Property • Lawfully Regulating Other Employee Behavior

1. THE NLRB HAS LOST ITS WAY:
WHAT’S AN EMPLOYER TO DO?
December 5, 2012
Howard L. Bernstein Sonya Rosenberg
Neal, Gerber & Eisenberg LLP Neal, Gerber & Eisenberg LLP
2 North LaSalle Street, Suite 1700 2 North LaSalle Street, Suite 1700
Chicago, Illinois 60602 Chicago, Illinois 60602
312/269-8447 312/827-1076
hbernstein@ngelaw.com srosenberg@ngelaw.com
The contents of these slides should not be construed as legal advice or a legal opinion on any specific fact or circumstance. The slides are intended for general purposes
only, and you are urged to consult a lawyer concerning your own situation and any specific legal questions you may have. © Neal, Gerber & Eisenberg LLP 2012

2. Purpose of the Program
 Update on recent significant developments at the
NLRB.
 Discussion of NLRB decisions and the impact on
employers.
– Social Media Policies
– Confidentiality of Investigations
– Employment-At-Will Statements
– Limiting Off Duty Access to Company Property
– Regulating Other Employee Behavior
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3. Purpose of the Program (Continued)
 Other NLRB actions and initiatives.
– Notice Posting
– “Quickie” Elections
– Smaller Bargaining Units
– New NLRB Website Targeting Union-Free Employees
 A glimpse into the future.
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4. The Starting Point
Section 7 of the National Labor Relations Act
Employees have 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,
and shall also have the right to refrain from any or all
such activities.
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5. “Concerted Activity”
 Undertaken by two or more employees.
 Undertaken by one employee on behalf of others.
 Undertaken by one employee to enforce rights
under a Union contract.
 Undertaken by one employee to attempt tp enlist
support of others.
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6. “Mutual Aid and Protection”
 More Money
 Better Benefits
 Safe Workplace
 Job Security
 Prevent Discrimination
 Other terms or conditions of employment
6

7. Examples of Protected Concerted Activity
 Discussing terms and conditions of employment.
 Soliciting others to join in action.
 Distributing materials.
 Engaging in a work stoppage, refusal of overtime,
even engaging in a strike.
 Complaining – even to outsiders – about the
company, its managers and supervisors, or about
working conditions.
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8. Balancing of Protected Concerted Activity
with Legitimate Business Interests
 Interference with work.
 Interference with employer’s legitimate interest.
 Protection of employer’s property interests.
“Has the NLRB lost its balance?”
8

9. Recently, the NLRB General Counsel (Chief Prosecutor) and
the NLRB have set out on a Mission to tip the balance
heavily in favor of employees and against employers
regarding Section 7 rights.
It’s weapon – a critical review of virtually every employers
rule or policy, including the most common, most long-
standing policies.
9

10. The Key Inquiry
Will employees reasonably construe the rule or
policy to prohibit Section 7 conduct?
Will the rule or policy reasonably tend to
“chill” employees in the exercise of their
Section 7 rights?
10

11. How does the NLRB Decide is the Rule is
Lawful?
Does the rule explicitly (on its face) restrict Section
7 rights?
 Unlawfully broad no solicitation / no distribution
rule.
 Ban on wearing Union buttons.
 Rule prohibiting employees from discussing
wages.
11

12. If not (if the rule is ambiguous or subject to several
interpretations), then a violation depends on a showing that:
A. A showing that the rule was promulgated in response to Union
activity, or
B. The rule has been applied to restrict Section 7 rights , or
C. Employees would reasonably construe the language to prohibit
Section 7 activity.
12

13. Social media and the NLRB
 Social media sites = modern-day water coolers
 Employers have responded with:
a) Nothing
b) Implementation of social media policies and practices
c) Disciplining employees for inappropriate posts
 The NLRB has emerged as the unlikely lead
player in shaping the developing law in the social
media realm.
13

14. NLRB’s Basic Take on Social Media
 In the recent years, the Board has issued a
number of complaints, memoranda, reports, and
decisions relating to social media sites.
 Common Theme:
– The NLRB will strike down employers’ social media-
related policies and/or disciplinary actions that it deems
to impede or chill employees’ Section 7 rights.
– Let’s look at some recent examples.
14

15. Costco Wholesale Corp.(Sept. 7, 2012)
 In its employee handbook, Costco had an “Electronic
Communications and Technology Policy” which stated:
“Employees should be aware that statements posted
electronically (such as online message boards or
discussion groups) that damage the Company, defame
any individual or damage any person’s reputation, or
violate the policies outlined in the Costco Employee
Agreement, may be subject to discipline, up to and
including termination of employment.”
15

16. Costco Wholesale Corp. (cont.)
 The Board held Costco’s policy to be unlawful, on
reasoning that employees could reasonably
construe it to prohibit NLRA-protected activities:
– The policy’s broad prohibition against making “damaging statements”
“clearly” encompassed concerted communications protesting
treatment of employees.
– Nothing suggested that Section 7-protected communications were
excluded from the policy.
– As phrased, the policy had a reasonable tendency to inhibit
employees’ protected concerted activities.
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17. Karl Knauz Motors Inc. (Sept. 28, 2012)
 Robert Becker, a salesman at Knauz BMW, posted pictures
and comments about a car accident at a dealership owned by
Knauz BMW.
 The accident resulted from a customer letting his 13-year-old
son sit in the driver’s seat. The teen stepped on the gas
pedal and drove the car down an embankment into a pond.
 Becker posted pictures of the accident on his Facebook page,
with thse comments:
– “This is your car: This is your car on drugs.”
– “The kid drives over his father’s foot and into the pond in all of about 4
seconds and destroys a $50,000 truck. OOPS!”
 Becker was terminated.
17

18. Karl Knauz Motors Inc.
 Knauz BMW maintained a “courtesy rule” in its
employee handbook, which stated:
“Courtesy is the responsibility of every employee.
Everyone is expected to be courteous, polite and
friendly to our customers, vendors and suppliers, as
well as to their fellow employees. No one should be
disrespectful or use profanity or any other language
which injures the image or reputation of the
Dealership.”
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19. Karl Knauz Motors Inc. (cont.)
 The NLRB deemed this rule unlawful, on reasoning that:
– Employees could reasonably construe the rule’s prohibitions as
encompassing Section 7 activity.
– Employees would reasonably assume that Knauz BMW would
regard statements of protest or criticism as rule violations.
– Nothing in the rule (or elsewhere in the handbook) could reasonably
suggest that protected communications are excluded.
 Note: The NLRB reasoned that had the Company only
encouraged employees to be courteous, the rule would
have been deemed lawful. But, the NLRB deemed that the
rule went beyond “the positive aspirational language” to
affirmatively, inappropriately proscribing messages and
communications potentially critical of the Company.
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20. Karl Knauz Motors Inc. (cont.)
 Interestingly, the NLRB held that Becker’s
termination did not violate the NLRA:
– Becker was discharged solely because of his
postings about the car accident.
– These postings were “obviously” unprotected, as
they did not involve any discussion of terms or
conditions of employment.
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21. Dish Network (November 14, 2012)
 Dish Network’s Social Media Policy provided:
“You may not make disparaging or defamatory comments
about DISH Network, its employees, officers, directors,
vendors, customers, partners, affiliates or our, or their,
products/services. … Unless you are specifically authorized
to do so, you may not participate in these activities with
DISH Network resources and/or on Company time …”
 The ALJ held this policy to be in violation of the NLRA
because prohibitions against “disparaging or defamatory
comments” and ban of such social media discussions
during “Company time” could be reasonably interpreted to
interfere with Section 7 activities.
21

22. Employer-Conducted Investigations
 In another recent, controversial decision – Banner
Health System (July 30, 2012) – the NLRB
weighed in on employer-conducted investigations,
specifically whether employers may require that
interviewed employees maintain confidentiality of
the matter(s) being investigated.
 The NLRB held that employers may not maintain
such a requirement, absent a legitimate business
justification that would outweigh the employees’
right to engage in protected activities.
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23. Banner Health System (cont.)
 Banner Health System’s HR consultant routinely asked
employees not to discuss a matter that was being
investigated with other employees while the investigation
was ongoing.
 The NLRB held that such a generalized, blanket
confidentiality rule was outweighed by the employees’
NLRA rights.
 A different result may be reached in certain other, specific
situations, e.g., where: an investigation witness requires
protection, evidence is in danger of being destroyed, or
there is a danger of fabrication.
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24. Top 3 Investigation Tips
1. Avoid knee-jerk reactions (including as to
negative or seemingly inappropriate employee
postings on social media sites).
2. Conduct a prompt and thorough investigation,
being cognizant of any confidentiality-related
considerations and instructions.
3. Above all, approach each situation thoughtfully
and on its individual facts.
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25. Employee-At-Will Statements
Example
“Your employment with the XYZ Company is “At Will” and can be
terminated either by you or the company at any time for any reason.,
with or without notice. Nothing in this handbook (or offer letter) is
intended to create any employment contract or to guarantee
employment for any term. No company officer, agent, supervisor or
manager can change the employment at will relationship. By
accepting employment and by signing a copy of this handbook (offer
letter) you agree that your employment is at will.”
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26. UNLAWFUL
1. Not unlawful on its face, BUT
2. Unlawful because employees could reasonably construe
the language to prohibit the Section 7 activity – collective
bargaining – which changes the “at will” relationship to a
contractual relationship and because the acknowledge-
ment can be construed by the employee as a waiver of
that right.
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27. Result
At-Will statements may still be lawful if
carefully drafted so that employees cannot
“reasonably construe” the statement or the
acknowledgement as a waiver of their right to
engage in collective bargaining.
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28. Limiting Off Duty Employee Access
Can an employer lawfully prohibit employees who
are off duty from returning to the workplace?
“An employee is not to enter the facility or remain
anywhere on Company property, including
parking lots, cafeteria, break rooms, or locker
rooms, unless the employee is on duty or
scheduled to work.”
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29. OLD APPROACH
1. Limits access solely with respect to the interior of the
facility and other working areas.
2. Doesn’t limit access to non-work areas such as parking
lots, break rooms, lock rooms, etc. unless there is a
legitimate business reason for limiting access to those
areas.
3. Applies to off duty employees seeking access to the
facility for any reason and not just employees engaging in
union activity.
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30. NEW TWIST ON THE OLD APPROACH
Ban all access to working areas for any purpose.
OR
Permit access to working areas for all purposes (except for
narrowing drawn specific expectations for special
circumstances not subject to employer discretion).
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31. Regulating Other Employee Behavior
Rule against “refusal to follow reasonable work directive or
undermining the Company, management or employees.”
Found unlawful. Could be reasonably constructed to prohibit
Section 7 activity – disagreeing with management and
encouraging other employees to disagree.
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32. Rule against walking off the job or leaving the plant without
permission.
Rule against engaging in or participating in any interruption
of work.
Found Unlawful. Section 7 rights include the right to engage
in a work stoppage or strike (absent a no strike clause in a
union contract)
Board concluded that employees would reasonably interpret
these rules to prohibit strikes and work stoppages.
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33. What’s an Employer to Do?
1. Review your handbook and polices.
2. Revise or eliminate rules that clearly prohibit or interfere
with Section 7 rights.
3. Revise rules that could reasonably be construed to
interfere with Section 7 rights – if you can.
4. Add specific disclaimers, but …
5. But, don’t panic – assess the risk of non-compliance with
the difficulty of compliance.
6. Wait and watch.
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34. Some Recent Changes in NLRB Rules and
Procedures That Will Impact Union Organizing Drives
 Notice Posting
 “Quickie” Elections
 Smaller Bargaining Units
 New NLRB Website Targeted at Unorganized
Employees
34

35. Notice Posting – Starting April 30, 2012 (Postponed)
35

36. “Quickie Elections” New NLRB Rules Effective
April 30, 2012 (Postponed)
1. Eliminates Most Disputes Over Voter Eligibility Until
After Election.
2. Almost No Right To Pre-Election Hearing.
3. Decisions Made By Regional Director With Almost
No Review By NLRB.
36

37. “Quickie Elections”
RESULT = Elections in 25 Days Or Less From Date
Petition Is Filed
Little Time To Learn About Activity, Learn
About Union, or Educate Employees.
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38. And It Gets Worse!
NLRB decision in Specialty Healthcare and
Rehabilitation, 357 NLRB No. 83
The petitioned for unit is always “an appropriate unit” of
the employees in that unit share a community of
interest.
If the other party argues for a broader unit, that party
has the burden of showing an overwhelming
community of interest among the groups.
38

39. The New NLRB Website
www.nlrb.gov/concerted-activity
 Gives “typical” (?) examples of “protected concerted
activity”
– Employee fired after raising safety concerns.
– Employees fired after writing letters protesting wage cuts
– Employee fired for discussing her wages with another employee
– Employees fired for walking off the job to protest a new employer
policy.
– Employee fired for Facebook posting criticizing her superior.
Encourages employees to contact the NLRB.
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40. A Glimpse into the Next Four Years
 What should employers expect to see?
– Under the second Obama administration,
expect to see a strong, government-sanctioned
commitment to supporting employees,
including through new legislation and
aggressive enforcement and liberal
interpretation of labor and employment laws.
40

41. Federal Agencies – NLRB and EEOC
 NLRB
– Will continue to maintain a broad, expansive view and interpretation
of employees’ Section 7 rights.
– Increased scrutiny of employer policies.
– Continued initiatives to make it easier for workers to organize.
 EEOC
– Hiring policies and hiring / recruitment-related discrimination.
– Protecting immigrant workers.
– Addressing “emerging issues” (AADA, LGBT coverage under Title
VII, pregnancy).
– More focus on retaliation.
– More focus on harassment.
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42. Federal Agencies (cont.) – DOL
 Wage and Hour Division:
– Increased focus on employee misclassification.
• “Right to Know” regulations: employee v. independent contractor classifications
– “Plan, Prevent, Protect” regulatory actions to require employers to develop
programs to address employment law compliance issues.
– Increased monetary penalties for noncompliance.
 OFCCP
– Increased emphasis on affirmative action.
– Potential rule changes.
– More aggressive audits.
 OSHA
– Increased emphasis on employee safety.
– Proposal to require injury and illness prevention programs.
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43. Other Issues
 Immigration:
– Revive immigration reform.
– Increased workplace enforcement efforts and audits.
 Health Care:
– Patient Protection and Affordable Care Act.
– Expect regulations to implement the law.
– Employers must ensure compliance with law.
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44. Questions - Discussion
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