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NLRB memorandum could signal litigation priorities

Labor and employment attorneys are taking special notice of a recent memorandum issued by the general counsel of the National Labor Relations Board that requires regional officers to seek guidance from the board’s Division of Advice before proceeding on a broad array of matters.

The document could help predict the issues that will serve as flashpoints for future litigation, from the use of at-will clauses in employee handbooks to the right of employees to communicate via company email systems.

NLRB officials say the memo, which itemizes dozens of areas that require advice submissions, is part of an effort to promote consistency throughout the regional offices — a move attorneys say is not in itself out of the ordinary.

“Perhaps the general counsel is seeking to promote uniformity throughout the regions on the approach to the shopping cart of issues he is requiring the regions to confer with the general counsel’s office [on],” said Gary H. Kreppel, a lawyer in Marlborough, Mass.

But attorneys say the document may also offer a blueprint for the agency’s litigation priorities. Such mandatory advice memos “do signal the priorities of the general counsel, so the document offers an interesting insight into the likely future course of enforcement,” said Michael Aldana, a partner in the labor and employment group at Quarles & Brady in Milwaukee.

‘Centralized consideration of certain issues’

The Feb. 25 memo from NLRB general counsel Richard F. Griffin points out that the “vast majority of cases can be processed without guidance from headquarters.”

“In rare instances, however, a centralized consideration of certain issues can enhance our ability to provide a clear and consistent interpretation of [the National Labor Relations Act],” Griffin wrote in the memo. “In light of [recent] Board and circuit court decisions … and the emergence of new policy issues in the past several years, this updated list of matters that should be submitted to the Division of Advice has been prepared.”

Among the matters listed are areas in which attorneys have already seen an uptick in litigation, controversial rulings from the board, and conflicting decisions from circuit courts, including:

•           Cases considering whether employees have a Section 7 right to use an employer’s email system;

•           Cases involving the use of “at-will” provisions in employee handbooks;

•           Unresolved issues concerning undocumented workers; and

•           Cases involving mandatory arbitration agreements with a class action prohibition. While the board ruled in D.R. Horton that mandatory arbitration clauses barring class actions violate the NLRA, several circuit courts have since held otherwise.

While the fact that the memorandum requires NLRB prosecutors to seek guidance before proceeding on certain matters is not that unusual, Aldana said, the list of legal areas warrants careful attention.

The list “touches on every aspect of the law where there have been decisions by courts of appeal [overturning] the NLRB, or where there have been differing opinions issued by the board over time,” said Kreppel, who formerly worked as an NLRB trial attorney in Minneapolis.

After several years in which the board’s authority was clouded in uncertainty due to vacancies, Senate gridlock and constitutionally controversial recess appointments, the NLRB now has five Senate-approved members. The board, which has a history of being more political than other federal agencies, could be seeking to establish its agenda for the next several years.

“Now that the board has a full complement of members, it is not surprising that the general counsel’s office will be pursuing an aggressive agenda,” Aldana said.

It is unclear when any litigation uptick might occur, but attorneys and their clients should “use this roadmap in evaluating their policies and practices, making adjustments where practicable in an effort to provide defenses if challenged, and assessing risks,” he said.

Focus on email, at-will pacts, class actions

Some of the issues presented in the memo were already on the radar of employment attorneys, especially when they concern non-unionized workplaces, said David P. Frenzia, an attorney in Clayton, Mo.

One area with perhaps the highest potential for breaking new legal ground involves workers’ use of company email systems. While the board in past administrations has allowed employers to bar the use of email systems for non-work-related communications, it may now be expressing a willingness to consider whether an employment policy barring non-work-related use of company email might violate the NLRA if it is seen as restricting communications related to concerted activity.

“The board is looking for a case to come up,” Frenzia said.

On the issue of at-will employment clauses, a ubiquitous tool in many American workplaces, the board garnered attention in 2012 with a pair of cases claiming at-will employment clauses in non-union workplaces violated federal labor laws because they had the potential to stifle concerted activity under Section 7.

The board later issued an advice memo that attempted to clarify the rules governing at-will clauses, but the latest memo indicates that it is still seeking to flesh out that issue.

“It appears that the general counsel’s office will attempt to develop some case law in this area,” Aldana said.

In 2012, the board also issued one of its most controversial decisions in recent memory, ruling in D.R. Horton that mandatory arbitration clauses could not bar class actions.

That rule remains in place, but a growing number of federal appellate courts have held to the contrary, including the 2nd, 3rd, 4th, 5th, 8th, 9th and 11th circuits.

“Until the Supreme Court weighs in, we are governed by what the board is going to do unless you are in a circuit that has addressed this,” Frenzia said. “The board will continue to take this position.”

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