Recent NLRB Decisions Affecting Non-union Employees May Be Invalid

January 25, 2013

A federal appeals court today found unconstitutional three recess appointments President Obama made to the National Labor Relations Board in January 2012, leaving the Board with only one validly appointed member.  If the ruling is upheld, many if not all of the NLRB's 2012 decisions could be invalid, as the Supreme Court has held that the Board may issue decisions only when it has at least three sitting members (out of a total of five).

The NLRB iissued several controversial decisions in 2012 imposing significant limitations on employers' confidentiality policies even as they affect non-union employees.  For example, the Board held that employers may not prohibit employees from communicating via social media about wages, benefits, or other terms and conditions of employment as such communications (even if critical of the employer) constitute protected "concerted activity" under Section 7 of the National Labor Relations Act.  The Board also ruled that employers may not require that employees refrain from discussing on-going investigations of alleged workplace misconduct, as such communications also constitute protected concerted activity.

Employers nationwide should continue to monitor developments carefully, as an appeal to the Supreme Court is likely.  Despite the current uncertainty over the validity of the Board's recent rulings, employers should carefully review their confidentiality policies.  Even if the Board's 2012 decisions are invalidated, a fully constituted Board during the Obama administration likely will continue to issue employee-friendly decisions that will apply to non-union workforces.

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