NLRB Says Noncompete and Nonsolicitation Agreements May Violate National Labor Relations Act

President Biden issued an executive order that all federal agencies look into noncompete agreements, and they have been doing so. The FTC recently banned most of them (don't get too excited though as Republicans challenge this), and now NLRB is stepping in.

In a recent decision, the NLRB determined that an employer's 12 month noncompete and 24 month nonsolicitation agreements violated the National Labor Relations Act. Some key takeaways:

a.    These agreements can have a chilling effect on employees who want to discuss possible unionization or working conditions.

b.    Employees dependent on a paycheck will be afraid to rock the boat.

c.    If employees are unable to find similar work because it's prohibited, they will be even more afraid to speak up.

d.    Employees could be afraid of discussing unionization for fear of being accused of inducing employees to leave.

e.    There are far less oppressive ways to protect confidential information.

f.    The very existence of a rule, whether or not there has been any attempt to enforce, can violate the law.

Here are some key quotes from the opinion that might help you if an employer seeks to enforce one of these agreements against you:

• An employee who is dependent on Respondent for a paycheck would reasonably view the cited provisions in the employment agreement as limiting their ability to engage in union and other protected activities. The prohibition in Provision 1(C) on soliciting employees to leave Respondent’s employ would dissuade a reasonable employee from engaging in protected activity like telling their coworkers about the wages and benefits offered by the Union out of a reasonable fear that Respondent might accuse them of inducing other employees to quit. 
• Not only is this provision ridiculously broad in scope (could an employee indirectly engage with a competitor by sending a family member to buy something from its store?), but it would also cause a reasonable employee to refrain from engaging in protected activities that come with a risk of retaliation. 
• If an employee knows they are barred from being involved in any capacity with any company that operates a similar business to Respondent, they will logically be more fearful of being fired and less willing to rock the boat because they face the prospect of being unable to find any work in their geographic area if they are fired or forced to leave their job. 
• All three of the challenged provisions would deter a reasonable employee from working for other employers in the area as a union salt or recruiting others to do so for fear of being accused of inducing other employees to leave, being forced to tell their supervisors about job offers they receive, or having Respondent find out they are working for one of its competitors.
• The non-competition clause in Provision 2(A) applies for 12 months after employees leave, but in practice it also applies to employees while they are working for Respondent, as most employees find a new job before leaving their old job, and the knowledge that they will be unable to work for a competitor in their geographic area if they are fired or leave would necessarily impact their behavior before and after they leave Respondent’s employ. 
• Because employees are required to sign Respondent’s employment agreement at a time when they are economically dependent on Respondent, I find that the above provisions unlawfully chill employees from participating in protected activities both during and after their employment with Respondent. 
• A reasonable former employee would continue to be chilled from engaging in union and other protected activity by the threat of damages and legal fees for violating the agreement. It is unlawful for an employer to restrain former employees from engaging in protected activity.
• The agreement itself states that the rule against soliciting other employees prevents “pirating,” the requirement that employees report job offers is in place to “protect [Respondent’s] rights under this Agreement” and that the noncompetition provisions are in place because employees may have information about its customers, employees, and business arrangements. There are other, unchallenged, portions of the agreement that address these concerns, including provisions requiring employees to turn over confidential and proprietary information and prohibiting them from trying to divert Respondent’s customers. Therefore, the stated justifications are insufficient to rebut the presumption that the provisions are unlawful, particularly in the absence of any evidence that Respondent’s objectives could not be addressed with a more narrowly tailored rule.
• When a rule chills employees in the exercise of their Section 7 rights, the Board has the authority to prevent it from “cowing…employees into inaction” by blocking it even before the “chill is manifest.”
• Nor does the Board have to wait for a work rule to be enforced before it acts, as it “has long and consistently recognized that an employer’s mere maintenance of a work rule may unlawfully interfere with, restrain, or coerce employees in the exercise of their Section 7 rights.”

Noncompete agreements and, to some extent, nonsolicitation agreements, work to suppress wages, make employees afraid of being fired, force employees to put up with terrible working conditions, and are generally a menace to society. I'm glad to see that the federal agencies are finally waking up to their evils. 

Vote well in the upcoming election if you want to let President Biden keep pushing to limit these awful agreements.

If you have a noncompete or nonsolicitation agreement and want to know if it's enforceable, talk to an employee-side employment lawyer in your state.

Beware Billionaires Who Want To Gut NLRB

Amazon has now joined SpaceX and Trader Joe's in asking that the National Labor Relations Board be deemed unconstitutional. With the Supreme Court in its current configuration, there's a real possibility that they could decide NLRB should no longer exist or be substantially gutted. 

That would be a terrible thing for employees, and for Americans in general. Here's why.

NLRB is the agency that handles unfair labor practices complaints against both employers and unions. That's what they're mostly known for. But they do so much more. Here are some lesser-known rights NLRB enforces:

• The right to discuss your pay with coworkers
• The right to discuss working conditions with coworkers
• The right to complain about working conditions
• The right to discuss forming a union
• The right to refuse to join a union
• The right to assist or refuse to assist a union

Without the NLRB, these rights would have to be dealt with in courts, if at all. That would clog the court system and make it more difficult for workers to enforce their rights.

Unions are good for America. They're good for the economy. When unions were strong, we had a strong middle class that could afford things like houses and college. We're in the horrible economy we're in because Republicans have systematically done everything they could to gut unions and reduce their power in workplaces and in politics.

Amazon and Trader Joe's, you should be ashamed of yourselves. SpaceX, well, what can I say? Seems like there's no shame to be had there anymore.

While unions are on the resurgence, we'll see more efforts like this one to destroy unions and worker power altogether. So vote well.

Does Your Noncompete Agreement Violate the National Labor Relations Act?

 The NLRB General Counsel is taking the position that noncompete agreements in employment and severance agreements violates the National Labor Relations Act.

Non-compete provisions are overbroad, that is, they reasonably tend to chill employees in the exercise of Section 7 rights, when the provisions could reasonably be construed by employees to deny them the ability to quit or change jobs by cutting off their access to other employment opportunities that they are qualified for based on their experience, aptitudes, and preferences as to type and location of work. Generally speaking, this denial of access to employment opportunities chills employees from engaging in Section 7 activity because: employees know that they will have greater difficulty replacing their lost income if they are discharged for exercising their statutory rights to organize and act together to improve working conditions; employees’ bargaining power is undermined in the context of lockouts, strikes, and other labor disputes; and, an employer’s former employees are unlikely to reunite at a local competitor’s workplace, and, thus be unable to leverage their prior relationships—and the communication and solidarity engendered thereby—to encourage each other to exercise their rights to improve working conditions in their new workplace.

In addition, non-compete provisions that could reasonably be construed by employees to deny them the ability to quit or change jobs by cutting access to other employment opportunities chill employees from engaging in five specific types of activity protected under Section 7 of the Act. First, they chill employees from concertedly threatening to resign to demand better working conditions. Specifically, they discourage such threats because employees would view the threats as futile given their lack of access to other employment opportunities and because employees could reasonably fear retaliatory legal action for threatening to breach their agreements, even though such legal action would likely violate the Act. Second, they chill employees from carrying out concerted threats to resign or otherwise concertedly resigning to secure improved working conditions. Although extant Board law does not unequivocally recognize a Section 7 right of employees to concertedly resign from employment, such a right follows logically from settled Board law, Section 7 principles, and the Act’s purposes. It is also consistent with the U.S. Constitution and other federal laws. Accordingly, I will urge the Board to limit decisions inconsistent with that right to their facts or overrule them.  

Is this a magic wand that makes your noncompete go poof? No. But it gives you another weapon in your arsenal to challenge your noncompete agreement, assuming your employer is covered by the NLRA (most are). The key here to challenging noncompetes through the National Labor Relations Act is concerted activity. You'd have to be part of a group of employees that want to threaten to resign or go to a better workplace. By yourself, the challenge probably fails. 

Plus, there is no caselaw supporting this specific issue, so there's no guarantee the federal courts as currently constituted (the Supremes have been very pro-employer) would uphold this interpretation.

If you think your noncompete may violate the National Labor Relations Act, you can file a charge against employer with the NLRB within 6 months of the alleged violation, or talk to an employee-side employment lawyer in your state about your rights.

Fired for Advocating for Non-Employees? You May Have Rights

The National Labor Relations Board has ruled that employees who advocate for non-employees such as applicants and interns are legally protected by the National Labor Relations Act. The NLRB Chair said, "“Standing in solidarity can be a protected act regardless of the employment status of those you stand with — the question is simply whether, in helping others, employees might help themselves and get help in return."

The case involved an employer's refusal to rehire a former employee. An employee who attempted to rally coworkers in support of the former employee was deemed legally protected.

The thing about the National Labor Relations Act is that it protects "concerted activity" and not just you acting on behalf of yourself. So trying to get coworkers to support an intern or a potential hire now falls within the legal protections of the NLRA.

The Board explained what constitutes "concerted activity":

Thus, as the Board has explained, the statutory concept of protected concerted activity has two elements: the employee’s activity must be “concerted,” and it must be “for mutual aid or protection.” E.g., Fresh & Easy Neighborhood Market, Inc., 361 NLRB 151, 152–153 (2014). 

“[W]hether an employee’s activity is ‘concerted’ depends on the manner in which the employee’s actions may be linked to those of his coworkers.” Id. at 153 (citing, inter alia, NLRB v. City Disposal Systems, 465 U.S. 822, 831 (1984)). The Board has held that concerted activity “encompasses those circumstances where individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management.” Meyers Industries, 281 NLRB 882, 887 (1986) (Meyers II), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988). Notably, the “object of inducing group action need not be express,” and an employee’s statement may, in certain contexts, “implicitly elicit[] support from his fellow employees.” Whittaker Corp., 289 NLRB 933, 933–934 (1988). As the Board stated in Meyers II, “the question of whether an employee has engaged in concerted activity is a factual one based on the totality of the record evidence.” 281 NLRB at 886. “Mutual aid or protection,” in turn, “focuses on the goal of concerted activity; chiefly, whether the employee or employees involved are seeking to ‘improve terms and conditions of employment or otherwise improve their lot as employees.’” Fresh & Easy, supra, 361 NLRB at 153 (emphasis in original) (quoting Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978)). Both the “concertedness” and “mutual aid or protection” elements under Section 7 are analyzed under an objective standard, whereby motive for taking the action is not relevant to whether it was concerted, nor is motive relevant to whether it was for “mutual aid or protection.” Id.

The Board further elaborated: "It is well established that “the activity of a single employee in enlisting the support of his fellow employees for their mutual aid and protection is as much ‘concerted activity’ as is ordinary group activity.” Whittaker Corp., supra, 289 NLRB at 933 (1988) (quoting Owens-Corning Fiberglas Corp. v. NLRB, 407 F.2d 1357, 1365 (4th Cir. 1969))."

Bottom line is that you are allowed to speak up about working conditions and to attempt to get coworkers to take action regarding working conditions. You don't have to succeed in rallying coworkers to join you. Advocating on behalf of non-employees such as potential employees and interns is now legally protected. 

If an employer retaliates against you for doing so, or for taking any other protected concerted action, then you can file a charge against employer with the NLRB within 6 months from the date of retaliation.

New NLRB Handbook Rules Means Many Employer Handbook Provisions Are Illegal

NLRB has issued a new standard for evaluating employer work rules and employer handbooks. It applies to non-union and union workplaces that are covered under the National Labor Relations Act, which means most employers are covered. Under the new standard, the person challenging a rule or handbook provision must prove that the challenged rule has a reasonable tendency to chill employees from exercising their rights to engaged in concerted activity to discuss or change working conditions. If so, then the rule is presumptively unlawful. 

However, the employer may rebut the presumption by proving that the rule advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule.

This is a sea change from the prior standard, and it will make it much easier for employees to challenge rules. The new standard appeared in a case where the following rules were successfully challenged:

• Confidentiality of investigations
• Limiting personal calls and emails to family emergencies
• No personal electronic devices or cell phones to be kept in lockers and used only on breaks
• No behavior that harms the business reputation of the company
• No activity that adversely reflects on the integrity of the company
• No photos
• No recordings

If these sound familiar, it's because similar rules are in many company handbooks. If they're in yours, you may be able to file an NLRB charge against employer if you want to challenge the rule.

The Board explained how to evaluate a "chilling effect":

In determining whether an employer’s rules or policies restrict or chill employee’s rights to engage in protected activity, one must consider if: “(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; (3) or the rule has been applied to restrict the exercise of Section 7 rights.” Lutheran Heritage Village—Livonia, 343 NLRB 646, 646–647 (2004). Where a rule or policy explicitly restricts Section 7 activity or can be reasonably read to restrict such activity, the Board is required to evaluate the employer’s asserted business justification “[t]o strike a proper balance between the employees’ rights and the Respondent’s business justification.” Caesar’s Palace, 336 NLRB 271, 272 (2001). The Board must accommodate the respective rights of the parties “with as little destruction of one as is consistent with the maintenance of the other.” NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956).

I know. Blah, blah, blah. What this means is if you would think a rule prohibited you from engaging in discussions or activities with coworkers regarding working conditions, it's probably illegal. If the rule was made because of union activity or because employees were discussing a potential union, it's probably illegal. If the rule has been applied to restrict employees' ability to discuss or take action together regarding working conditions, it's probably illegal. 

Some rules that may well be affected by this ruling, in addition to the ones I mention above, include:

• Not saying negative things about the company
• Restricting social media use and comments about the company
• Limiting or regulating the ability of employees to make safety complaints
• Restricting meetings or discussions with coworkers
• Restricting the circulation of petitions
• Prohibiting or limiting comments to the media or government agencies
• Prohibiting insubordination
• General civility rules

You don't have to be disciplined under these rules in order to challenge them. So if you think a rule is illegal, you can contact the NLRB about it. If you have been fired for violating a rule you think may be illegal, especially if you were fired for discussing working conditions with coworkers, contact an employee-side employment lawyer in your state about your rights.

NLRB Says Employee Outbursts Regarding Working Conditions Are Protected

The Biden NLRB recently overturned a Trump-era case that allowed employers way too much discretion to fire employees who engage in alleged unprofessional behavior when discussing working conditions. The case involved a union activist who was fired. The behavior that resulted in the termination was described by the Administrative Law Judge as follows:

Colone spoke persistently and argumentatively,and made a brusque, impolite statement to an employee who was leaving the meeting that he should “just go ahead and leave” be-cause he wasnot needed; he also, upon Dean refusing to provide him with the paperwork related to the new overtime policy, told Dean that he was not doing his job.

 The NLRB said the harsher standard the GOP Board set was erroneous:

The Board has long held, with uniform judicial approval, that causation is not at issue where an employer defends a disciplinary action based on an employee's alleged misconduct in the course of union activity, and the Board determines that the misconduct was not sufficiently egregious to deprive the employee of the protection of the Act. Everyone agrees that the disciplinary action was motivated by conduct that the Board—in fulfilling its statutory responsibility to determine the scope of the Act's protection—has found to be protected. That the employer labeled the conduct abusive, disloyal, uncivil, or insubordinate does not bring its motive into question. Ozburn-Hessey Logistics, LLC, 366 NLRB No. 177, slip op. at 5 (2018), enfd. in relevant part 803 Fed. Appx. 876, 882-883 (6th Cir. 2020); Roemer Industries, Inc., 362 NLRB 828, 834 fn. 15 (2015) (explaining that where an employer defends disciplinary action based on an employee’s misconduct in the course of protected union activity, and the misconduct was not egregious enough to remove the protections of the Act, “the 8(a)(3) violation is established because the antiunion motive is not in dispute--the protected union conduct was the motive for the discipline”), enfd. 688 Fed. Appx. 340 (6th Cir. 2017). 

 The NLRB cited as an example of conduct that is protected:

A good example is the Eighth Circuit’s picket-line misconduct decision in Cooper Tire & Rubber Co. v. NLRB, 866 F.3d 885 (8th Cir. 2017), a case the General Motors Board simply ignored. In Cooper Tire & Rubber, the court enforced the Board’s order requiring reinstatement of a striker who had directed racist taunts at a van carrying replacement workers that had just crossed the picket line. It agreed with the Board’s application of the Clear Pine Mouldings standard and rejected the employer’s argument that Wright Line should apply. 866 F.3d at 889–890. It also rejected the argument that the Board’s order conflicted with the employer’s duty under Title VII, 42 U.S.C. §§ 2000e, et seq. Id. at 891- 892. The court explained that the striker’s picket-line jibes—racially offensive, stereotyped comments about food —did not create a hostile work environment, nor did Title VII create any legal obligation to fire the striker. Id. at 892.41 The Eighth Circuit’s decision is not anomalous.

The Supreme Court has said repeatedly that Title VII is not “a general civility code for the American workplace.” As the Court has explained, “offhand comments and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” There is no obvious or inevitable conflict, then, between the Board’s approach as reflected in the setting-specific standards and Federal antidiscrimination law.

I can't tell you how often the "general civility code" language has been thrown at me in sexual and racial harassment cases, so it's good to see the NLRB saying what's good for the goose is good for the gander. You don't want a general civility code? Then you can't claim it when people are protesting or discussing working conditions.

I generally suggest that employees remain professional when discussing working conditions with management and coworkers. But the NLRB has made it much more difficult for employers to fire employees who are advocating for better working conditions. 

See? Elections matter. Vote well in 2024.

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NLRB Makes Employers Liable For Damages For Direct and Foreseeable Harms

The National Labor Relations Board (NLRB) recently ruled that employers are liable for compensatory damages in unfair labor practices case. This means employers are now liable for direct and foreseeable harms if they break the law.  Previously, employees could only recover the loss of earnings and benefits. Now, victims of unfair labor practices may recover for other financial costs, such as out-of-pocket medical expenses, credit card debt, or other costs that are a direct or foreseeable result of the unfair labor practices. 

This new rule about compensatory damages for unfair labor practices benefits workers in several ways:

1. Increased compensation: Now workers who have been affected by unfair labor practices can receive full financial compensation to help make up for their losses. Lost wages and benefits are frequently just the beginning of the losses employees incur when employers break the law.

2. Incentive for employers to comply with labor laws: The new rule provides an incentive for employers to comply with the National Labor Relations Act. This can help to deter employers from engaging in such practices, which can benefit workers by creating a more positive and equitable workplace, or at least a place where they are not punished for getting together with coworkers to discuss working conditions.

3. Recognition of the harm caused by unfair labor practices: The new rule recognizes that unfair labor practices can cause severe harm to workers beyond lost wages and benefits, and it provides a mechanism for compensating workers for that harm. This recognition is important because it helps to validate the experiences of workers who have been affected by such practices and it helps to ensure that workers are made whole for their losses.

4. Encourages workers to report unfair labor practices: The new rule can encourage workers to report unfair labor practices, because they know that they may be entitled to compensatory damages if they are affected. This can help to increase awareness of such practices and to ensure that they are addressed, which can benefit workers by creating a safer and more equitable workplace.

5. Promotes fairness in the workplace: The new rule promotes fairness in the workplace by ensuring that workers who are affected by unfair labor practices are compensated for their losses. This can help to create a more just and equitable workplace. Employees are entitled to engage in action with coworkers to discuss working conditions and bring their concerns to managment. Employers will hopefully become more aware that there will be costly consequences of retaliating against employees who do so.

If you think your employer has violated the National Labor Relations Act, contact an employee-side employment attorney in your state to discuss your rights. If you have a union and you think your employer has violated the law, talk to your union leadership about bringing an unfair labor practices claim.


Overall, the National Labor Relations Board's new rule about compensatory damages for unfair labor practices benefits workers by increasing compensation, providing an incentive for employers to comply with labor laws, recognizing the harm caused by unfair labor practices, encouraging workers to report such practices, and promoting fairness in the workplace. By providing workers with greater protections and increased compensation, the new rule helps to create a more positive and equitable workplace for all.

Nondisparagement and Confidentiality Clauses In Severance Agreements Violate NLRA

Just about every single severance agreement I've ever seen in 36 years of law practice have two standard clauses: the former employee cannot disparage the former employer, meaning they can't say anything negative about the company or its employees and frequently to a broader list of entities; and a confidentiality clause prohibiting the former employee from telling anyone about the agreement, frequently prohibiting them from even saying it exists.

Well, the National Labor Relations Board has just ruled that both provisions are illegal under the National Labor Relations Act.

Regarding nondisparagement: 

This far-reaching proscription—which is not even limited to matters regarding past employment with the Respondent— provides no definition of disparagement that cabins that term to its well-established NLRA definition under NLRB v. Electrical Workers Local 1229 (Jefferson Standard Broadcasting Co.), supra, 346 U.S. at 477. Instead, the comprehensive ban would encompass employee conduct regarding any labor issue, dispute, or term and condition of employment of the Respondent. As we explained above, however, employee critique of employer policy pursuant to the clear right under the Act to publicize labor disputes is subject only to the requirement that employees' communications not be so “disloyal, reckless or maliciously untrue as to lose the Act's protection.” Emarco, Inc., 284 NLRB 832, 833 (1987).  

Further, the ban expansively applies to statements not only toward the Respondent but also to “its parents and affiliated entities and their officers, directors, employees, agents and representatives.” The provision further has no temporal limitation but applies “[a]t all times hereafter.” The end result is a sweepingly broad bar that has a clear chilling tendency on the exercise of Section 7 rights by the subject employee. This chilling tendency extends to efforts to assist fellow employees, which would include future cooperation with the Board’s investigation and litigation of unfair labor practices with regard to any matter arising under the NLRA at any time in the future, for fear of violating the severance agreement’s general proscription against disparagement and incurring its very significant sanctions. The same chilling tendency would extend to efforts by furloughed employees to raise or assist complaints about the Respondent with their former coworkers, the Union, the Board, any other government agency, the media, or almost anyone else. In sum, it places a broad restriction on employee protected Section 7 conduct.  We accordingly find that the proffer of the nondisparagement provision violates Section 8(a)(1) of the Act.

Our scrutiny of the confidentiality provision of the severance agreement leads to the same conclusion. The provision broadly prohibits the subject employee from disclosing the terms of the agreement “to any third person.” The employee is thus precluded from disclosing even the existence of an unlawful provision contained in the agreement. This proscription would reasonably tend to coerce the employee from filing an unfair labor practice charge or assisting a Board investigation into the Respondent’s use of the severance agreement, including the nondisparagement provision. Such a broad surrender of Section 7 rights contravenes established public policy that all persons with knowledge of unfair labor practices should be free from coercion in cooperating with the Board. The confidentiality provision has an impermissible chilling tendency on the Section 7 rights of all employees because it bars the subject employee from providing information to the Board concerning the Respondent’s unlawful interference with other employees’ statutory rights. See Metro Networks, supra, 336 NLRB at 67.

Regarding confidentiality:

The provision broadly prohibits the subject employee from disclosing the terms of the agreement “to any third person.”  The employee is thus precluded from disclosing even the existence of an unlawful provision contained in the agreement. This proscription would reasonably tend to coerce the employee from filing an unfair labor practice charge or assisting a Board investigation into the Respondent’s use of the severance agreement, including the nondisparagement provision. Such a broad surrender of Section 7 rights contravenes established public policy that all persons with knowledge of unfair labor practices should be free from coercion in cooperating with the Board.  The confidentiality provision has an impermissible chilling tendency on the Section 7 rights of all employees because it bars the subject employee from providing information to the Board concerning the Respondent’s unlawful interference with other employees’ statutory rights. See Metro Networks, supra, 336 NLRB at 67.

The confidentiality provision would also prohibit the subject employee from discussing the terms of the severance agreement with his former coworkers who could find themselves in a similar predicament facing the decision whether to accept a severance agreement. In this manner, the confidentiality provision impairs the rights of the subject employee’s former coworkers to call upon him for support in comparable circumstances. Additionally encompassed by the confidentiality provision is discussion with the Union concerning the terms of the agreement, or such discussion with a union representing employees where the subject employee may gain subsequent employment, or alternatively seek to participate in organizing, or discussion with future co-workers.  A severance agreement is unlawful if it precludes an employee from assisting coworkers with workplace issues concerning their employer, and from communicating with others, including a union, and the Board, about his employment. Id. Conditioning the benefits under a severance agreement on the forfeiture of statutory rights plainly has a reasonable tendency to interfere with, restrain, or coerce the exercise of those rights unless it is narrowly tailored to respect the range of those rights. Our review of the agreement here plainly shows that not to be the case. We accordingly find that the proffer of the confidentiality provision violates Section 8(a)(1) of the Act. 

So, is this a magic wand? Did such provisions suddenly go poof? No. Management side will fight this decision like cornered rats. Still, keep an eye out for further developments. In the meantime, you might want to file with NLRB if your employer presents you with any such provisions in a proposed severance agreement.

Recording Meeting In Office Protected by National Labor Relations Act

For those of us in all-party consent states like Florida, it's always an issue whether employees may record conversations with supervisors surreptitiously. Now employees have another weapon in their arsenal to support the legality of office recordings: the National Labor Relations Act (the Act).

In a recent decision, a National Labor Relations Board Administrative Judge held that a recording of a meeting where unionization was being discussed was both legal and protected by the Act, even though company policy prohibited such recordings:

Section 7 of the Act reads as follows: 

Employees shall have the right, to self-organization, to form, join, or assist labor 35 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 except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a 40 condition of employment as authorized in section 8(a) (3). 

29 U.S.C. § 157. Thus, employees have a statutory right to engaging in union and protected concerted activities, or to refrain from any and all such activities. Cf. Stanton Industries, Inc., 313 NLRB 838, 848 (1994) (noting the Board has “pointed out over and employees have the 45 right to engage in union activities, as well as the right to refrain from engaging in union activities, which rights are guaranteed by Section 7 of the National Labor Relations Act.) JD(SF)–21–19 14 

Regarding Mansour, I find that his actions were protected by Section 7 of the Act. In the January 9 captive-audience meeting Respondent was presenting its position to employees and attempting to persuade them to vote the Union out. Mansour had never previously been in a 5 union, he is dyslexic, and English is his second language. He decided to record the meeting to listen to it more carefully later and get a better understanding of what being discussed. Mansour was simply documenting the meeting in order to study Respondent’s position, so he could make an educated choice when voting to either retain or decertify the Union. Respondent argues his actions are not protected because he did not discuss his intentions to record the meeting with 10 anyone else. However, I find Respondent’s argument misguided.

The judge also found that the recordings were legal under Washington law because the subject matter, unionization, was not private and the employer could not restrict employees from discussing what happened in the meeting. Further, the judge determined there was no expectation of privacy in the meeting.

So, while this decision only applies where the meeting is about unionization or working conditions on behalf of coworkers as well as yourself, and only if you aren't in management, and only if you work for an employer covered by the Act (which is most non-government employers), it may keep you from being fired (or prosecuted) if you get caught recording a workplace meeting.

Walmart Should Have Listened To Me About Firing Striking Workers

About exactly a year ago, I wrongly predicted that Walmart wouldn't fire their striking workers. The article was called Why Walmart Won't Fire Striking Workers - And What That Means For You. The reason I predicted that they wouldn't fire their workers for striking is that the National Labor Relations Act says even non-union American workers have the right to strike and take other actions to protest and try to improve working conditions, and they can't be fired in retaliation.

Despite my warning that the strikers couldn't be legally fired, at least 23 workers were fired and another 43 were disciplined. Well, the NLRB didn't take that sitting down. They just slapped Walmart hard, announcing they will pursue legal claims against Walmart for the employees, which means these employees may get reinstated and awarded back pay. 

Here's what NLRB said about Walmart's actions: “During two national television news broadcasts and in statements to employees at Walmart stores in California and Texas, Walmart unlawfully threatened employees with reprisal if they engaged in strikes and protests on November 22, 2012.” NLRB also found that, “Walmart stores in California, Colorado, Florida, Illinois, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, North Carolina, Ohio, Texas and Washington unlawfully threatened, disciplined, and/or terminated employees for having engaged in legally protected strikes and protests.”

What this means is we can expect more Black Friday protests, and probably more battles to improve working conditions at Walmart.

Just a reminder - before you run out the door with placards to protest your workplace, the National Labor Relations Act only covers non-supervisory employees, and while it covers most non-government workplaces, it doesn't cover them all. Plus, you have to be part of "concerted activity" with coworkers to be protected. If you're protesting your own working conditions, you aren't protected against retaliation. However, if you are objecting to something that affects at least one co-worker, or with at least one co-worker, then you may be legally protected.

If you are thinking about organizing at work, smaller micro-unions are now allowed. This means that you don't have to organize the whole company anymore, but can organize a specific group of workers. For instance, a court recently allowed a union to organize a group of nursing assistants at a hospital. The employer thought other non-professional employees should be included, but the smaller unit was approved.

If you decide you want to organize a union at work, or want to know more about your rights to discuss and improve working conditions, I suggest contacting a union like AFL-CIO to get some help and legal advice. There are some legal hoops you'll have to jump through if you actually form a union.

You Have The Right To Discuss Salary With Coworkers

Many people who are trying to figure out whether they've been the victim of discrimination miss an obvious way to find out how much coworkers are making: asking them. Some employers try to prevent this by putting in handbooks or contracts a provision prohibiting salary discussions among coworkers. Those employers are, for the most part, breaking the law.

If you work for a non-government employer and aren't a supervisor or management, you likely have the absolute right to discuss your salary, benefits and other working conditions with your coworkers.

The National Labor Relations Act (NLRA) protects employees who engage in concerted activity to improve working conditions. That means you can discuss pay and benefits with coworkers and the employer is not allowed to punish you for doing so.

Before you defy management directives and start discreetly asking trusted coworkers to exchange salary information, you should make sure you aren't exempt from this law. While the vast majority of non-government employers are covered, some are exempt. Independent contractors and supervisors are exempt. But many people classified as contractors are misclassified and are really employees. You may be protected even if you think you aren't.

Even if you're allowed by law to discuss pay with coworkers, I still suggest using some sense. Some people are offended if you ask about money. Make sure you trust the person and have a good idea that they won't mind. If it's someone you suspect is also underpaid, you might convince them to talk to you with some evidence, such as telling them that you know John Smith and Jim Doe make more than you for the same work, but you are wondering if other women in the company are also underpaid for the same work. Another time to ask is when someone is leaving. They may mind less if they're on their way out the door.

What you don't want to do is sneak into HR and look at their payroll records, hack the payroll company computers, or put a tape recorder in someone's office hoping to catch them in salary discussions. Those tactics are illegal. You not only will be fired if you're caught - you might go to jail.

If your company has an illegal policy or contract saying you can't discuss salary with coworkers, one option is to report them to the NLRB. Cases saying these prohibitions are illegal have been around way before the current issue arose about the current NLRB's makeup, so the fact that these policies are illegal won't change, no matter how optimistic employer organizations get. Even if you haven't been fired based on an illegal policy, you can file a complaint and NLRB may force your employer to change their evil ways.

If you think you're the victim of discrimination, one way to prove it is to prove you're paid less than others in a different category than you. Don't write off the easiest way to find out if you're paid unfairly. Go ahead. Take a coworker to lunch. Ask. You might be surprised by what you find out.

Can You Be Fired For Supporting A Political Candidate?

In my home state of Florida (why is it always Florida?), a CEO sent an email to all of his thousands of employees saying that, if Obama is elected, they would likely lose their jobs. He didn't threaten to fire them for supporting Obama, but did make it clear that, should Obama win, his employees would suffer dire consequences. Then a Wisconsin employer followed suit. The Koch Brothers did the same.

It turns out that Mitt Romney personally instructed CEOs to use this tactic with their workers.

So, have the CEOs crossed a line? Probably not. At least yet. Here are some things employers can't do during this political season:

Limit Discussions On Which Candidates Would Improve Working Conditions: While employers can certainly prohibit general political discussions and political campaigning at work, the National Labor Relations Act says that private employers cannot prohibit discussions about workplace conditions. Therefore, if employees discuss the employer's lengthy email about why a candidate is better for them as workers, then the employer can't fire employees who voice that the employer's email is full of misleading and incorrect information and that the other candidate is very clearly the better choice for working Americans. On the other hand, employers can force you, as a captive audience, to attend meetings and listen to one-sided political pitches on behalf of candidates unless you live in Oregon, which has the Worker Freedom Act. New Jersey has a similar law.

Discriminate Based On Political Affiliation: Not all states have laws prohibiting this, but many do. States that don't have such laws may have county or city ordinances that specifically prohibit political affiliation discrimination.The Civil Service Reform Act of 1978 prohibits political affiliation discrimination against federal employees.

Discriminate Based on Race, Sex, Religion, National Origin, Etc.: If your employer limits political discussions by some, but not all employees, then they may run afoul of discrimination laws. Much of today's partisan politics is about religion, for instance. Women's issues are hot topics in this political season. The presidential candidates are of two different races and religions. If your employer wants only one point of view expressed in your private sector job, the First Amendment won't help you but discrimination laws might.

Prohibit Labor Union Insignia: While employers can prohibit wearing of most political buttons, shirts and other campaign items, it can't prohibit union insignia. They could probably, for instance, prohibit a button that says, "Obama," but not one that says, "Teamsters For Obama."

Reimburse You For Political Contributions: If your employer says you should write a check to a candidate and agrees to reimburse you for it, they are breaking the law and could even go to jail.

Prohibit Time Off to Vote: Most states, but not all, require employers to let you take time off to vote.


State Laws That Might Help

In some states, these employers' threats may be illegal. For instance, in Michigan, the laws prohibit direct or indirect threats against employees for the purpose of influencing their vote. It also prohibits tracking of political activity.

In Ohio, West Virginia, Pennsylvania and Kentucky, employers are prohibited from posting or handing out notices threatening to shut down or lay off workers if a particular candidate is elected.

In Oregon, it's illegal to threaten loss of employment in order to influence the way someone votes.

In Washington State, it's illegal to retaliate against employees for failing to support a candidate, ballot position or political party.

Some states, like California, Colorado, New York, North Dakota and Louisiana, say it's illegal to retaliate against an employee for their off-duty participation in politics or political campaigns.

In Florida, it's a felony to "discharge or threaten to discharge any employee in his or her service for voting or not voting in any election, state, county, or municipal, for any candidate or measure submitted to a vote of the people."

In general, remember that the First Amendment doesn't protect you in a non-government workplace. Be careful out there, and don't forget to vote.

What the U.S. Chamber Of Commerce Doesn't Want You to Know About Your Workplace Rights

The National Labor Relations Board says almost all private employers must put up a poster informing you of your workplace rights under the National Labor Relations Act as of April 30, 2012. It’s free. Employers can download it online and print it out. So they all put up their posters, or are working on it now, right? Nosiree.

They sued. At least, they got together under the umbrella of the U.S. Chamber of Commerce to sue. They got a temporary injunction in the DC federal courts to stop the rule. They really, really don’t want you to see this poster. It must really be subversive, huh?

Well, see for yourself. Here’s exactly what the U.S. Chamber of Commerce doesn’t want you to know about your workplace rights:

Employee Rights Under the National Labor Relations Act

The National Labor Relations Act (NLRA) guarantees the right of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity or to refrain from engaging in any of the above activity. Employees covered by the NLRA are protected from certain types of employer and union misconduct. This Notice gives you general information about your rights, and about the obligations of employers and unions under the NLRA.


Contact the National Labor Relations Board (NLRB), the Federal agency that investigates and resolves complaints under the NLRA, using the contact information supplied below, if you have any questions about specific rights that may apply in your particular workplace.

Under the NLRA, you have the right to:

• Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.

• Form, join or assist a union.

• Bargain collectively through representatives of employees’ own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions.

• Discuss your wages and benefits and other terms and conditions of employment or union organizing with your co-workers or a union.

• Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.

• Strike and picket, depending on the purpose or means of the strike or the picketing.

• Choose not to do any of these activities, including joining or remaining a member of a union.

Under the NLRA, it is illegal for your employer to:

• Prohibit you from talking about or soliciting for a union during non-work time, such as before or after work or during break times; or from distributing union literature during non-work time, in non-work areas, such as parking lots or break rooms.

Under the NLRA, it is illegal for a union or for the union that represents you in bargaining with your employer to:

• Threaten or coerce you in order to gain your support for the union.

Wow. That’s it, you say? What’s the BFD? Well, I think it’s mostly these provisions big employer doesn’t want you to see:

Discussing wages and benefits with coworkers: The poster says, “Under the NLRA, you have the right to discuss your wages and benefits and other terms and conditions of employment . . . with your co-workers or a union.” Yet many employers take desperate measures to make sure you don’t know what coworkers are making and what benefits they have. Some put out written policies or put restrictions in contracts. That’s flat-out illegal. If you have a contract or if your employer has a policy saying you can’t discuss wages and benefits with coworkers, you can file a Charge Against Employer with NLRB right now. The other part they don’t want you to know about here is your right to grouse about working conditions with coworkers. You can grumble and complain during breaks, on Facebook, in Twitter, as long as you’re doing it with coworkers and they can’t fire or discipline you for it.

Discussing work-related complaints and working conditions with coworkers: The poster says, “Under the NLRA, you have the right to take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.” If you complain about conditions on your own and on behalf of yourself, you aren’t protected. But you have the absolute right (assuming you aren’t a supervisor) to complain about working conditions on behalf of coworkers, to get together with coworkers to discuss and complain, and to get together to try to negotiate better working conditions. That is huge.

Employers like to crack down on employees who complain. They want to create an atmosphere where employees shut up and accept things as they are. Most of the time, it’s best to keep your mouth shut. But sometimes, you have to speak up. If working conditions are intolerable, if it feels like a prison, if you are being paid unfairly, if there’s a bully in the workplace, sometimes you have to speak up. You probably have the right to do so, as long as you aren’t a supervisor, and as long as you’re not alone.