How Disruptive Can an Aggressive NLRB Be in a Non-Union Setting? More Than You Might Think
Posted
10:36 AM
by Michael Fox
If you are a non-union employer (and overwhelmingly most employers are) you might not have given much thought to your how your confidentiality policy stacked up against the National Labor Relations Act. In fact your policy might read something like the following:
But if it does, then according to the NLRB, now buttressed by the 5th Circuit Court of Appeals, you are in violation of the NLRA because that policy infringes on employees Section 7 rights. Flex Frac Logistics v. NLRB (5th Cir. 3/24/14).
Confidential Information
Employees deal with and have access to information that must stay within the Organization. Confidential Information includes, but is not limited to, information that is related to: our customers, suppliers, distributors; [Company] organization management and marketing processes, plans and ideas, processes and plans, our financial information, including costs, prices; current and future business plans, our computer and software systems and processes; personnel information and documents, and our logos, and art work. No employee is permitted to share this Confidential Information outside the organization, or to remove or make copies of any [Company] records, reports or documents in any form, without prior management approval.Disclosure of Confidential Information could lead to termination, as well as other possible legal action.
The 5th Circuit review of the Board's decision finding a violation is straightforward:
- It is a violation of the NLRA to have a workplace rule that forbids discussion of confidential wage information between employees.
- The rule above does not explicitly do that, but it is also a violation if "employees would reasonably construe the language to prohibit Section 7 activity.
- Because the clause covers financial information, including costs, that "necessarily includes wages and thereby reinforces that the rule proscribes wage discussion with outsiders."
- And the rule makes no attempt exclude some personnel information such as wages, which might make it pass muster.
5th Circuit Short Circuits Plaintiff's Use of State Court
How Much Would it Take to Wet Your Whistle?
Posted
7:20 PM
by Michael Fox
In certain parts of Texas, plaintiffs seek to avoid being in federal court at all costs. Today, the 5th Circuit clarified a procedural hurdle to that tactic in a small category of cases.
In Taylor v. Bailey Tool & Manufacturing (5th Cir. 3/10/14), plaintiff originally filed suit in state court alleging only violations of the Texas anti-discrimination statute. Unfortunately, for the plaintiff, the claim was not timely filed. Later plaintiff amended to add Title VII and a Section 1981 claim.
Defendant removed and moved to dismiss arguing all claims were untimely. Both parties agreed that the state claims were untimely. Both parties also agreed that whether the federal claims were timely depended on whether Federal Rule of Civil Procedure 15(c) or the Texas relation back rule, TEX. CIV. PRAC. & REM. CODE ANN. § 16.068 applied.
If Rule 15(c) applied, the federal claims, even though filed after the federal statute of limitations would be timely because they would relate back to the filing of the original claim. On the other hand, if the Texas rule applied, they would not be timely because § 16.068 prohibits relation back if the cause of action would have been subject to a plea of limitation when filed.
The 5th Circuit joined the two other circuits (the 6th and 9th) that had ruled on this matter, holding that the state rule applied, thus barring the claim.
The net result is that plaintiffs will have to make sure that their state claim is timely if they want to avoid federal court.
A simple and straight forward, but important, holding.
Posted
12:55 PM
by Michael Fox
That's a 64 million dollar question, literally. JP Morgan whistleblower gets $63.9 million in mortgage fraud deal.
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