Supremes Uphold Class Action Waivers

On May 21, 2018, the Supreme Court issued its long-awaited decision in Epic Systems v. Lewis, ___U.S.___(May 21, 2018). The issue in the case was simple. The Plaintiff signed an arbitration agreement which stated that he waived the right to bring a class action case. He sought to bring a class and collective action under the FLSA for unpaid overtime. In a 5-4 decision, the Court upheld the validity of class action waivers.

Plaintiff's major claim was the the class action waiver interfered with his right to engage in concerted activity under the NLRA. The Supremes rejected that argument and stated:
A close look at the employees’ best evidence of a potential conflict turns out to reveal no conflict at all. The employees direct our attention to the term “other concerted activities for the purpose of . . . other mutual aid orprotection.” This catchall term, they say, can be read toinclude class and collective legal actions. But the term appears at the end of a detailed list of activities speaking of “self-organization,” “form[ing], join[ing], or assist[ing] labor organizations,” and “bargain[ing] collectively.” 29
U. S. C. §157. And where, as here, a more general term follows more specific terms in a list, the general term is usually understood to “‘embrace only objects similar in nature to those objects enumerated by the preceding specific words.’” Circuit City Stores, Inc. v. Adams, 532 U. S. 105, 115 (2001) (discussing ejusdem generis canon); National Assn. of Mfrs. v. Department of Defense, 583 U. S. ___, ___ (2018) (slip op., at 10). All of which suggests that the term “other concerted activities” should, like the terms that precede it, serve to protect things employees “just do” for themselves in the course of exercising their right to free association in the workplace, rather than “the highlyregulated, courtroom-bound ‘activities’ of class and jointlitigation.” Alternative Entertainment, 858 F. 3d, at 414– 415 (Sutton, J., concurring in part and dissenting in part)(emphasis deleted). None of the preceding and more specific terms speaks to the procedures judges or arbitratorsmust apply in disputes that leave the workplace and enter the courtroom or arbitral forum, and there is no textually sound reason to suppose the final catchall term shouldbear such a radically different object than all its predecessors.

Query, whether this language will limit the protections non-union employees, have under the NLRA to engage in concerted activity for mutual aid and protection.

Confidentiality Rule That Prohibits Discussions About Salary Violates The NLRA

NLRB v. Long Island Association, ___F. 3d___(2d Cir. Aug. 31, 2017, is an interesting decision. The Court holds that an employer violated 8(a)(1) of the NLRA for discharging an employee who refused to sign an employer's confidentiality rule. That rule, among other things, stated that employees cannot disclose salaries. Of interest is that this employer was not organized and this is yet another example of the application of the NLRA to non-union employers. As the court stated:

 “The [NLRB] has long adhered to and applied the principle that discipline  imposed pursuant to an unlawfully overbroad rule is unlawful.” The Cont’l Grp., 3 Inc., 357 N.L.R.B. 409, 410 (2011). This is called the Double Eagle rule after Double  Eagle Hotel & Casino, 341 N.L.R.B. 112 (2004). See The Cont’l Grp., Inc., 357 N.L.R.B. 5 at 410. One of the central concerns animating the Double Eagle rule is that “the  mere maintenance of an overbroad rule tends to inhibit employees who are  considering engaging in legally protected activities by convincing them to refrain  from doing so rather than risk discipline.” Id. at 411. Thus, “[a]n employer is not free to evade liability through the device of utilizing a rule prohibiting activity protected by Section 7 of the [NLRA] and by then basing its discipline on the fact that the employee has violated the rule, thereby being insubordinate.” Kolkka  Tables & Finnish‐Am. Saunas, 335 N.L.R.B. 844, 849 (2001). In other words, “an employer may not discharge an employee for refusing to comply with an unlawful order prohibiting protected activity.” Quantum Elec., Inc., 341 N.L.R.B. 15 1270, 1280‐81 (2004). The rule that has emerged, therefore, is “that an employer  may not take coercive action against an employee . . . for refusing to comply with a policy that . . . itself deters protected activity” in violation of Section 8(a)(1)

No Recording Policy Violates NLRA

Whole Foods Markets v. NLRB, ____Fed. Appx.____(2d Cir. June 1, 2017) , is an important labor and employment case. Whole Foods, according to a NY Law Journal article, had a Handbook personnel policy which prohibited employees from taking audio or video recordings of "conversations, images, phone calls or company meetings" without prior approval because they "inhibit spontaneous and honest dialogue. A copy of the NYLJ article is available here. 

The NLRB and the Second Circuit held that they policy violated NLRA Section 7 rights of employees to engage in concerted activities. As the court explained:

Whole Foods’ attempt to separate the act of “recording” from conduct falling within Section 7’s protection ignores that its policies prohibit recording regardless of whether the recording is in relation to employees’ exercise of their Section 7 rights. See Rio, 362 N.L.R.B. No. 190, slip op. at 2. As written, those policies prevent “employees recording images of employee picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment, or documenting inconsistent application of employer rules” without management approval. Id., slip op. at 4. 

Moreover, despite the stated purpose of Whole Foods’ policies—to promote employee communication in the workplace—the Board reasonably concluded that the policies’ overbroad language could “chill” an employee’s exercise of her Section 7 rights because the policies as written are not limited to controlling those activities in which employees are not acting in concert. See Lafayette Park Hotel, 326 N.L.R.B. at 825. The Board’s determination in that regard was in accordance with law.

Determining 'Opprobrious' Conduct Under the National Labor Relations Act

An employee who engages in opprobrious conduct can loose protection under the NLRA. An interesting May 30, 2017 NYLJ article explores what is opprobrious conduct, here. The article states in part:

On April 21, 2017, the U.S. Court of Appeals for the Second Circuit decided NLRB v. Pier Sixty , 855 F.3d 115 (2d Cir. 2017), affirming a determination by the National Labor Relations Board (the NLRB) that an employee who directed obscenities at an employer over social media did not lose NLRA protections associated with union-related activity. The court recognized that certain conduct could be so "opprobrious" that it loses the protection of the NLRA. Here, the court ruled that the conduct at issue, while "at the outer-bounds" of protected speech, did not cross the line as unduly opprobrious. In so ruling, the court focused on three key factors that informed its analysis, including the fact that the comments were made on social media.