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NLRB Reinstates General Motors Standard for Employee Misconduct During Protected Activity

NLRB Reinstates General Motors Standard for Employee Misconduct During Protected Activity

The National Labor Relations Board (NLRB) has abandoned its 'Lion Elastomers' framework, which previously guided determinations of when employee misconduct during protected concerted activity would cause that activity to lose its protection under the National Labor Relations Act (NLRA). This decision effectively reinstates the 'General Motors' standard. The 'Lion Elastomers' framework, established in 2024, had provided greater leeway for workers regarding misconduct during protected activities by applying setting-specific standards. The Fifth Circuit's 2024 decision vacating 'Lion Elastomers' prompted this shift. Under the reinstated 'General Motors' standard, the NLRB will now apply the 'Wright Line' framework to assess whether an employer disciplined a worker for protected activity or for accompanying abusive conduct. This change makes it easier for employers to discipline or terminate workers for offensive or abusive behavior that occurs while they are engaged in otherwise protected concerted activities...
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National Labor Relations Board Adopts New Standard for Evaluating Employer Work Rules

National Labor Relations Board Adopts New Standard for Evaluating Employer Work Rules

The National Labor Relations Board (NLRB) has implemented a new legal standard for assessing employer work rules, shifting focus from the employer's intent to how an employee might reasonably interpret the rule. This change, adopted in 2023 under the 'Stericycle standard,' means that even policies designed with legitimate business purposes can face scrutiny if they could be perceived by employees as restricting their rights under the National Labor Relations Act (NLRA). Previously, many employers assumed a policy was lawful if it served a valid business objective. The NLRB's new approach emphasizes that policies, particularly those concerning civility, confidentiality, and social media, must be carefully worded to avoid inadvertently discouraging protected employee activities such as discussing wages, working conditions, or criticizing management. Investigations often arise not from the mere existence of a policy, but when it is enforced in a way that impacts employee rights.
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NLRB General Counsel Seeks Reversal of Key Labor Precedents, Prioritizing Employer-Friendly Policies

NLRB General Counsel Seeks Reversal of Key Labor Precedents, Prioritizing Employer-Friendly Policies

On August 26, 2026, Crystal S. Carey, the General Counsel of the National Labor Relations Board (NLRB), announced her intention to push for the re-evaluation and reversal of several significant labor law precedents. This initiative signals a major shift towards employer-friendly standards across various aspects of workplace policies, union communications, and collective bargaining agreements. The General Counsel has identified seven key areas for change. These include overturning the 2023 McLaren Macomb decision regarding severance agreements, which currently limits the enforceability of confidentiality and non-disparagement clauses. Instead, Carey proposes voiding severance agreements only if they explicitly waive employees' rights under the National Labor Relations Act (NLRA). Another target is the 2023 Stericycle ruling on work rules, which presumes rules are unlawful if they tend to chill employees' rights; Carey advocates for a balanced approach that considers employers' duties for safety and confiden...
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Fifth Circuit Clarifies Employer Communication Boundaries During Union Campaigns

Fifth Circuit Clarifies Employer Communication Boundaries During Union Campaigns

Fifth Circuit Clarifies Employer Communication Boundaries During Union Campaigns
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New York Enacts Personnel File Access Law, Granting Employees Greater Rights

New York Enacts Personnel File Access Law, Granting Employees Greater Rights

New York Governor Hochul has signed into law a new personnel file access bill, creating Labor Law Section 210-b. This legislation grants employees and former employees specific rights regarding their personnel records, a significant shift from previous regulations where such records were considered solely employer property. Effective November 8, 2026, both private and public employers in New York will be mandated to maintain a 'personnel record' for each employee, defined broadly to include any record that identifies an employee and is used or may affect their qualifications for employment, promotion, transfer, compensation, or disciplinary action. Employers must retain these records for three years post-termination. A key provision requires employers to notify an employee within ten days if any information is placed in their personnel record that could negatively impact their employment standing. Employees and former employees will also gain the right to request and receive a copy of their personnel recor...
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Employers Retain Right to Monitor Employee Emails and Internet Use on Company Devices

Employers Retain Right to Monitor Employee Emails and Internet Use on Company Devices

Employers in the U.S. generally maintain the right to monitor employee emails and internet usage when conducted on company-owned equipment. This practice is often outlined in employee handbooks, and employees typically have no expectation of privacy when using these devices. While employees have some protections regarding social media activity, particularly concerning discussions about wages, hours, and working conditions with co-workers, employers can still monitor social media for content that could harm the company's reputation. Employers are expected to have clear policies regarding social media use and to ensure employees understand these professional standards. This monitoring capability is a key aspect of employment law, which also addresses other areas such as 'at-will' employment, non-compete agreements, whistleblower protections, and constitutional rights like free speech and association within the workplace.
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Federal Law Governs Workplace Electronic Oversight, Balancing Employer Rights and Employee Privacy

Federal Law Governs Workplace Electronic Oversight, Balancing Employer Rights and Employee Privacy

Workplace privacy in the U.S. is a complex legal area, primarily governed by the Electronic Communications Privacy Act of 1986 (ECPA). This federal statute regulates electronic oversight in the workplace, generally prohibiting the intentional interception, access, or disclosure of electronic communications. However, the ECPA includes crucial exemptions for legitimate business practices. Employers typically have the right to access company-owned equipment and systems, such as corporate email, messaging platforms, internet browsing activity, and application usage, as these are considered the property of the business. Courts have consistently upheld that employees have a diminished expectation of privacy when using employer-provided systems. Despite this, employers must ensure confidentiality for personal information, including health data, and maintain privacy during employee interventions. The Department of Labor Privacy Program also aims to protect individual privacy while meeting operational needs. State ...
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New York State Employee Rights Regulations Offer Enhanced Protections Beyond Federal Standards

New York State Employee Rights Regulations Offer Enhanced Protections Beyond Federal Standards

New York State has established comprehensive employee rights regulations that often provide greater protections than federal laws. While federal wage and hour laws, such as the Fair Labor Standards Act (FLSA), set minimum standards for pay and working hours, New York State laws frequently exceed these federal requirements. For instance, New York's minimum wage is higher than the federal minimum wage, and employers in the state are mandated to pay the higher state rate. New York State law also outlines specific overtime rules and pay practices that employers must adhere to. Beyond wages, New York State laws protect employees from unlawful discrimination based on various characteristics, including age, race, gender, and religion, and ensure a safe working environment by requiring adherence to safety standards. Employers in New York must comply with both federal and state regulations, with the regulation offering greater protection for the employee generally taking precedence.
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Supreme Court Grapples with 'Ultra Vires' Review of Agency Actions, Including NLRB Cases

Supreme Court Grapples with 'Ultra Vires' Review of Agency Actions, Including NLRB Cases

The U.S. Supreme Court and lower federal courts are increasingly addressing 'ultra vires' challenges to agency actions, a legal concept where an agency is accused of acting beyond its statutory authority. This trend is highlighted by Justice Alito's dissent in *United States Postal Service v. California*, where he discussed the difficulty of winning such claims, often referred to as a 'Hail Mary pass.' Ultra vires claims are typically invoked when plaintiffs cannot use the Administrative Procedure Act (APA) to challenge an agency's non-final action. The legal framework for these claims often traces back to the 1958 case *Leedom v. Kyne*, which many lower courts have interpreted as allowing nonstatutory review for egregious statutory violations, even though a close reading of *Kyne* suggests it did not originally intend such a broad application. The National Labor Relations Board (NLRB) has been involved in cases where unions have invoked nonstatutory review to challenge certification orders, such as in *Ky...
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Thermoflex Reaches $9 Million Settlement in Illinois Biometric Privacy Lawsuit

Thermoflex Reaches $9 Million Settlement in Illinois Biometric Privacy Lawsuit

Thermoflex Reaches $9 Million Settlement in Illinois Biometric Privacy Lawsuit
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Federal Court Denies Summary Judgment for Kroll LLC in Trade Secret and Fiduciary Duty Case

Federal Court Denies Summary Judgment for Kroll LLC in Trade Secret and Fiduciary Duty Case

Federal Court Denies Summary Judgment for Kroll LLC in Trade Secret and Fiduciary Duty Case
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AMC to Pay $56,000 in EEOC Disability Discrimination Settlement

AMC to Pay $56,000 in EEOC Disability Discrimination Settlement

AMC to Pay $56,000 in EEOC Disability Discrimination Settlement