Cannabidiol (CBD) products may be the “magic elixir” of our day. Recently, CBD has been touted as a natural remedy for seemingly every ailment, including various kinds of pain, anxiety and insomnia. CBD also has been labeled an antidepressant and antidiabetic. While the science is still out on many of these claims, it is irrefutable that CBD’s popularity has exploded and its use has grown through nearly all demographics.

A survey conducted in January 2019 by Consumer Reports found that 26 percent of Americans have tried CBD at least once in the past two years, and one out of seven of those individuals are using it every day. With so many Americans trying CBD products to cure what ails them, employers should expect regular users to be among their employees. This is especially true for employers in the construction industry, because its employees are more prone to joint and back pain, which is one of the most popular ailments that advertisers of CBD products target. CBD use by employees brings its own set of issues and complications that employers should be aware of.

CBD is a non-intoxicating compound found in marijuana and hemp. This is not to be confused with tetrahydrocannabinol (THC), which is the psychoactive compound found in marijuana associated with the “high” felt by marijuana users. CBD is generally not mind-altering and has very little effect on the body’s receptors that interact with THC to produce the marijuana “high.” CBD can be derived from hemp or marijuana. In December 2018, the federal government passed the 2018 Farm Bill, which legalized hemp and hemp-derived CBD products. Now, hemp and the products derived from it are legal nationwide as long as they contain a THC concentration less than 0.3 percent. CBD derived from marijuana is still illegal federally, but may be legal under state schemes, like in Oregon.

CBD is commonly formulated as an oil, but it’s also sold as an extract, a vaping product, and in pill form. Additionally, products ranging from CBD-infused beverages to CBD-based skin care products are sold in retail stores and online. However, it must be noted that the vast majority of these CBD products are entirely unregulated by the Food and Drug Administration (FDA) as a “dietary supplement.”

This means that the majority of CBD products that could be used by employees are sold as dietary supplements, and they have no way of knowing exactly what else is in the product. Of particular note, a consumer has no way of knowing exactly how much THC is present in the popular hemp-derived CBD products they are consuming. Due to state regulations, CBD products derived from marijuana and sold in a dispensary are subjected to stricter testing requirements and may have more reliable and descriptive labeling.

The increased use of CBD products begs the question: What does the use of CBD products mean for employer drug testing programs? The drugs commonly tested for during employment-related drug testing include THC – not CBD. However, the use of CBD products may have an impact on a drug test. As stated above, users of CBD products cannot be sure how much THC is present in hemp-derived CBD products. So, employees could inadvertently use a product containing increased levels of THC. Also, chronic use of CBD products may result in an increased level of THC in a user’s body because THC metabolites (which trigger a positive drug test in sufficient concentrations) are stored in protein cells and fat tissue, and, over time, THC metabolites build up in one’s body. Therefore, it is possible to have an employee, who believes that he or she has stayed on the right side of your drug policies and the law, test positive for THC and fail a drug test.

As a result of the increased popularity of CBD products and the unregulated nature of the market, it is prudent for employers to take a few steps. First, employers that maintain drug-testing programs should inform employees of the risks of using CBD products. Second, employers should review and consult with counsel about their substance abuse policy and determine what employee conduct is subject to discipline. For example, employers may impose discipline for a positive drug test, even in the absence of on-the-job impairment, or employers may impose discipline if there is on-the-job impairment. Employers are free to maintain a policy that does not provide an “innocent ingestion” defense for a positive drug test. Each workplace presents different circumstances, and employers are free to tailor their substance abuse policy to their individual workplaces. Finally, employers should proactively explain to employees how the use of CBD products may impact the substance abuse policy. This is especially true in a union workplace where disciplinary action must be supported by “just cause.”

Kyle Abraham is an attorney with Barran Liebman LLP. He represents employers in traditional labor and employment law matters. Contact him at 503-276-2132 or kabraham@barran.com.

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Businesses that operate in Oregon and Southwest Washington are no strangers to sick leave laws. First, the city of Portland passed an ordinance requiring employers to provide paid sick leave to employees, or otherwise provide paid time off that may be used to cover qualified absences. Then, the Oregon Legislature passed a state sick leave law, which, fortunately, trumped Portland’s ordinance and took effect on Jan. 1, 2016.

Most recently, Washington’s sick leave law took effect on Jan. 1, 2018. Now businesses operating on both sides of the Columbia River must comply with both the Oregon and Washington state laws on sick leave.

The first challenge facing employers is reconciliation of the significant and numerous differences between the two states’ laws. For example, each law has a different rate of accrual for sick time. Oregon law requires one hour of paid sick time for every 30 hours worked; however, Washington law requires one hour of paid sick time for every 40 hours worked. The maximum amount of required sick time is different too. Oregon law allows employers to cap the amount of sick time an employee may accrue in one year to a total of 40 hours; however, Washington law requires employers to accrue sick time for all hours worked – meaning no cap.

These two differences are just the tip of the iceberg; there are a number of other differences between the state laws. Over the past six months, employers have taken one of two different approaches: create one policy that complies with the minimum requirements for both Oregon’s law and Washington’s law (and more than either law individually requires) or create two policies – one applied to Oregon employees and one applied to Washington employees. Accordingly, employers either create a policy with the highest accrual rate (Oregon’s 1:30) and the highest accrual amount (Washington’s no cap), or create two different policies.

The compliance issue gets even more complicated for businesses that send workers across the state line, as is common in the construction industry. Consider the following, common scenario: a Washington resident, working for a union contractor incorporated in Oregon, is dispatched from a hiring hall in Oregon, for a job in Washington, using tools kept at the worker’s home, and is being directed by a foreman from Oregon to install materials kept at the business’ office in Oregon. While this may read like a law school exam question, similar situations are not uncommon. Under this scenario, what must the employer do to comply with state sick leave laws?

Unfortunately, the answer is, of course, it depends. It depends on whether the employee will be deemed to be Oregon-based or Washington-based. Washington’s position is that employers must comply with Washington law for “Washington-based” employees, according to the Washington State Department of Labor and Industries (L&I). The state agency will examine each case individually to determine if the employee’s most significant relationship is to Washington or Oregon.

L&I is in the process of developing an administrative policy on the issue of Washington-based employees, and the policy is close to publication. Hopefully, L&I’s policy will provide some helpful guidance on the Oregon-based versus Washington-based employee determination.

For union contractors, the stakes are high on this issue. Benefits, including sick leave, in the construction industry are generally provided through a multiemployer trust. Businesses contribute a definite sum of money per hour (e.g., $4/hour) to a worker’s sick leave account, and the worker can withdraw the money from the account to cover lost wages for a sick day. This method of provided benefits is commonly referred to as “fringes.”

Thoughtfully, Oregon lawmakers created an exception in the sick leave law, and excluded from the law workers who are covered by a collective bargaining agreement, hired through a hall, and with benefits provided by a multi-employer trust or benefit plan. Unfortunately, the Washington law does not have the same exception for union workers. Generally, union workers receive a more generous sick leave benefit from the union contract relative to the legal requirement. Nevertheless, L&I’s position is that sick leave provided in the form of “fringes” does not comply with the Washington sick leave law. L&I requires a union contractor to provide its Washington-based employees with paid sick leave, on top of fringes, to comply with the law. So, the determination of Oregon-based versus Washington-based has a significant cost to businesses operating across the state line.

Kyle Abraham is an attorney at Barran Liebman LLP in Portland. He represents employers in traditional labor and employment law matters. To learn more about how Washington’s sick leave law can impact Oregon businesses, contact him at 503-276-2132 or kabraham@barran.com.

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Last November, Oregon voters passed Measure 91, which will allow adults to engage in the recreational possession and private use of marijuana. The law does not take effect until July 1; however, employers should not wait to determine what policies and procedures to put into place now. Effective policies can be determined by taking into account all the different pressures on employers caused by employee use of marijuana.

Before employers can identify the source of these pressures, it is important to understand the limits of Measure 91. The law does not allow for the possession or use of marijuana by individuals under the age of 21. Additionally, use of marijuana is not permitted in public, and possession in a public place is limited to the quantity of 1 ounce. Most importantly, Measure 91 did not change federal law related to marijuana. Under the Federal Controlled Substance Act, Cannabis (which is often synonymous with marijuana) remains illegal. There are implications here for employers subject to various federal laws.

Legal compliance with federal and other state laws offers one source of pressure on employers. For example, an employer designated as a federal contractor must still maintain a “zero tolerance” policy regarding the use of illegal drugs in order to comply with the Federal Drug Free Workplace Act. Additionally, employers that perform certain transportation functions must still comply with the drug regulations set by the federal Department of Transportation. Also, under both federal and Oregon law, an employer must provide a safe workplace under the Occupational Safety and Health Act. Oregon law specifically prohibits the use of intoxicating liquor and drugs on the job, and anyone whose ability to work safely is impaired by alcohol, drugs, or medication must not be allowed to work in that condition. When considering the impact of Oregon’s Measure 91, the first step for employers is to identify the legal obligations placed on their workplace by other laws.

Employers will also experience pressure on issues related to staffing. The increasing use of marijuana will make it more difficult for employers to maintain a strict zero tolerance drug policy, conduct drug tests, and attract and retain employees who are able to pass a drug test for marijuana. In certain industries and locations, recruiting may prove to be a major hardship for employers seeking to implement or maintain a hardline stance prohibiting the use of marijuana by employees.

In response to these pressures, employers should take some time to carefully consider their substance abuse policy. An effective substance abuse policy clearly outlines the employer’s position on the use of drugs, defines prohibited conduct, explains the consequences for violations, and describes the basis for drug testing. There are a number of reasons employers may want to be committed to a drug-free workplace, including improved workplace safety and increased productivity. An employer is free to regulate employee conduct related to illegal drug use, including prohibiting being under the influence, which may be defined as having any detectable level of alcohol or illegal drugs in an employee’s body, or any noticeable or perceptible impairment of the employee’s mental or physical faculties. Employers should clearly explain that any violation of the policy may result in immediate termination or the employee may be offered a second chance before termination. Finally, employers should give consideration under what circumstances, if any, employees will be subjected to drug testing. There are a number of bases for drug testing such as pre-employment, random, reasonable suspicion, post-accident, or return to duty. Unless specifically required by law, an employer is free to determine the basis for which employees must submit to drug testing.

There is no one-size-fits-all answer to how employers should address the pressures of recreational marijuana use; however, they have a number of options. First, they are free to determine the degree of discipline that will be imposed for prohibited conduct. Second, they are free to set the basis for testing required of employees. For example, employers may maintain a policy of a drug-free workplace without demanding that employees submit to random drug testing. Third, employers may establish one set of policies covering employees performing safety-sensitive functions and a different set of policies covering employees who do not perform such functions.

In the end, employers need to make informed decisions with respect to the risks and pressures of increased employee use of marijuana. As for the law in this area, employers in doubt should seek counsel from an employment attorney who can help develop a policy that complies with applicable laws while meeting the unique operational needs of the employer.

Kyle Abraham is an attorney with Barran Liebman LLP, where he advises and represents employers on a wide range of labor and employment law issues. Contact him at 503-276-2132 or at kabraham@barran.com.

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We have all heard the phrase “the best defense is a good offense.” Military theorist Carl von Clausewitz is often credited with coining this expression, but today we most often hear it used in the context of sports. This phrase also serves as great advice for employers facing employee complaints. The best defense against employee complaints of harassment, retaliation or misconduct is a good investigation.

When an employer receives a complaint, it must first assess whether there is a need to conduct an investigation and/or implement protective measures. If the complaint involves allegations of harassment, retaliation or serious employee misconduct, then the employer should investigate. In the event of lesser complaints involving, for example, an employee just “blowing off steam” about a co-worker, a full investigation may not be necessary. Employers should consider protective measures (such as administrative leave or reassignment) if, in the absence of such measures, disruptions to an impartial investigation are likely.

Once the decision is made to investigate, an employer must determine the posture of the investigation. A workplace investigation can serve as both a shield and a sword. Employers may shield themselves against liability from some claims of harassment by raising an affirmative defense known as Faragher-Ellerth.

In order to assert this defense against liability, the employer must exercise care to prevent and promptly correct the alleged harassment. Written policies provide good evidence of an employer’s efforts to prevent harassment, and such policies should state the employer’s commitment to take complaints seriously, explain the reporting process and promise no retaliation for making complaints. Prompt correction requires an employer to conduct a thorough and fair investigation, and take reasonable action to end and prevent the alleged wrongful conduct from occurring again.

A workplace investigation also serves as a sword to address employee misconduct by providing employers with a solid record on which they may base disciplinary action. An employer should promptly investigate employee misconduct to limit the wrongdoer’s opportunity to launch a pre-emptive strike by engaging in protected conduct, such as filing a whistleblower complaint, before the employer takes action. Additionally, the failure to take immediate action creates the impression that the alleged misconduct is not a serious offense, which may later be used against the employer if termination is based on the misconduct.

A thorough investigation into misconduct will include interviewing the employee. While such an interview presents a chance for the employee to tell his side of the story, it also provides the employer the ability to gain admissions from the employee and lock the employee into a story early in the process. After the investigation posture is set, the employer selects an individual to serve as the investigator.

An employer’s selection of an investigator will be scrutinized as evidence of commitment to the complaint. A good investigator is someone who is free from perceived bias, well-trained and versed in the subject matter, experienced in investigations and able to start immediately. For some complaints, an employer may be able to use an “in-house” investigator; however, other, more serious complaints warrant selection of an investigator from outside. Before selecting an individual outside the organization to serve as an investigator, employers should ensure that the individual is either a licensed private investigator or an attorney and has the proper experience required.

It is important for the employer to clearly communicate the scope and procedures for the investigation. In order to retain discretion to determine whether a violation occurred, the employer should limit the scope to a fact-finding investigation. Failure to do so may very well tie the employer’s hands and force it to accept the conclusions of the investigator. The employer and the investigator should also determine whether the interviews will be recorded, which facilities/resources are available, and the format of the investigation report.

Once the scope and procedures are established, the employer should turn the reins over to the investigator. Too much influence and involvement has the potential to result in allegations of a sham investigation unduly influenced by the employer. Allegations of a sham investigation can destroy the credibility of the entire investigation.

The investigator’s finished product should be a written report for the employer. The report is prepared to help the employer make a solid decision regarding what, if any, action should be taken in response to the complaint.
Based on the report, the employer should take action consistent with the investigator’s factual findings. If corrective action will be taken, the employer should inform the complainant that action will be taken. If no action will be taken, the employer should inform the complainant that the situation will be monitored and warn the subject of the investigation that retaliation may result in discipline.

By following these steps, employers will achieve a prompt, thorough, fair and effective investigation. This process requires an investment of time, energy and money, but investing in a good offense is the best defense against workplace complaints.

Kyle Abraham is an attorney at Barran Liebman LLP in Portland where he represents employers in traditional labor and employment law matters. He is an active member of the Association of Workplace Investigators, and the only attorney in Oregon to have successfully completed the association’s Training Institute for Workplace Investigators program. Contact him at 503-276-2132 or kabraham@barran.com.

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Workplace violence is a sad reality of our world today. Last year, there were 397 workplace homicides in the United States. Just last month, a former employee walked into a UPS facility in Alabama and shot and killed two people, and in Oklahoma someone recently terminated by Vaughan Foods returned to his former workplace and attacked and killed a former co-worker.

Unfortunately, the question is not if more incidents of workplace violence will occur, but rather where they will occur. If one were to occur at your workplace, would you be prepared? For too many of us, the answer is “no.” If you find yourself in a violent incident at work, your survival may depend on whether you and your employer have a plan.

While employers may not possess the power to fix the social forces that contribute to workplace violence, they can control the effect of workplace violence on their employees. In fact, employers have some legal responsibility to do so. The Occupational Safety and Health Administration (OSHA) recently cited several employers for failing to provide employees with adequate safeguards against violent acts that occur in the workplace. In August, OSHA announced that it fined a company $71,000 for failing to adequately protect employees against workplace violence.

To protect employees, employers should take the following steps: research previous incidents, conduct a site visit, develop a written plan, train employees on the plan, test the plan and revise as needed. Research should not be limited to an employer’s own facility, but include others with similar operations. For example, employers with a perimeter gate and access badges can learn valuable lessons about removing former employees’ access to the facility by studying the September 2013 incident at the Navy Yard in Washington, D.C.

By conducting a site visit, an employer can assess both the specific types of threats likely to occur and whether current facilities provide adequate protection and resources in the event of an incident. A site visit may reveal the need for some simple changes that could mean the difference between life and death, such as installation of a lock on an office door to provide an effective hiding place from an intruder. An office remodel presents a great opportunity to redesign the workspace to prevent entrapment of employees or to build in controlled access to employee work areas.

Employers need to develop a written plan. The plan should instruct employees how to prevent or defuse an incident of violence. Employers are wise to train employees on how to identify escalating behavior in co-workers, patients or customers. When employees spot the warning signs of escalating behavior, such as confusion, frustration, blame, anger, and finally hostility, they should contact their supervisor.

Supervisors should be trained on the appropriate strategic response to the escalating behavior. Employers should also develop procedures for employees to discreetly alert supervisors and co-workers of an escalating situation and the need for assistance. For example, it is common practice in hospitals to alert staff to emergencies by using a public address system; “code silver” typically indicates a combative person with a weapon. Such a warning provides employees the opportunity to take steps to protect themselves.

If it is not possible to prevent an incident of workplace violence, employees should be trained on how to respond appropriately. There are three things employees can do that make a difference: run, hide or fight.

First, if employees can get safely out of harm’s way, they should do so. Employees should help others leave too, but not at the risk of slowing down their own exit. If employees do not have a safe escape path, they should find a place to hide. Employees should turn out lights, lock doors and silence cellphones. Only as a last resort should employees try to engage an intruder.

It is important for employees to know that first responders’ top priority is not to evaluate individuals or attend to the injured, but rather to stop the intruder. Employees need to remain calm and hidden until authorities communicate that the scene is safe. These steps can make a difference in employees’ survival.

It is not enough to have a great plan; employers must also ensure that everyone experiences how it will work. It is a best practice for employers to conduct workplace violence drills. Such drills require careful planning to ensure employees and visitors understand the incident is simulated. Placing a camera, such as a GoPro, on a simulated intruder provides great data to analyze how employees responded and how to improve their response. This data will aid employers with the final step: revising the plan as needed.

It is often said that nobody plans to fail; they just fail to plan. The consequences of employers failing to plan for an incident of workplace violence could have dire consequences. Employers may want to avoid planning for a situation that seems altogether too terrible to consider; however, preparing employees for safety will demonstrate care for their well-being. Employers can prepare employees for an incident of workplace violence by training and equipping them on how to properly manage the crisis.

Kyle Abraham is an attorney at Barran Liebman LLP. He represents employers in traditional labor and employment law matters. Contact him at 503-276-2132 or kabraham@barran.com.

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In today’s world, social media is a way of life; Facebook touts that it has more than 1 billion active accounts, Twitter touts that it has more than 550 million users, and LinkedIn claims it has more than 225 million members. According to a Feb. 14 study by the Pew Research Center’s Internet and American Life Project, 67 percent of Internet users also use social networking sites.

Employees and applicants who use social media divulge personal information about themselves and their activities, and that often is sought by employers when making important employment decisions. In an effort to increase privacy protections, state legislatures have rushed to ban employers from accessing social media accounts; in 2012 nine states passed applicable legislation. Under current law, an Oregon employer may still require employees and applicants to provide access to their personal social media accounts, but that is likely to change soon.

On May 16, the Oregon Legislature passed House Bill 2654, which would make it an unlawful employment practice for employers to require an employee or applicant to provide access to the individual’s personal social media account, request the individual access the account in the employer’s presence, or direct an employee to add the employer as a contact or friend. HB 2654 also prohibits employers from disciplining employees for refusing to provide access to personal social medial accounts and grants employees or applicants the right to file a lawsuit against the employer for violations of the law.

HB 2654 identifies certain circumstances under which an unlawful employer practice does not arise. First, if an employer receives a complaint of harassment or other employee misconduct, an employer may investigate the complaint by directing an employee to share content from a personal social media account, so long as the complaint indicates that a social media account is somehow involved. Even under these circumstances, the employer is still prohibited from demanding unfettered access to the personal social media account.

Second, separate from any investigation, if an employee’s or applicant’s social media account allows members of the public to view their full profile, an employer is free to access the account.

Lastly, employers are not liable for unlawful employment practice for inadvertently receiving information that would provide access to a personal social media account. This may be possible, for example, if an employer is monitoring usage of an employee’s Internet activity during work time on the employer’s network.

Even with these specific guidelines, HB 2654 is likely to present several challenges for employers. For example, the bill defines social media broadly to include any electronic medium that allows users to create, share or view user-generated content through email, the Internet or other means. Based on this definition, all electronic content or activity on the Internet is included, not just an individual’s Facebook page, Twitter feed or LinkedIn account, and will likely result in unintended consequences.

Second, HB 2654 defines social media accounts as either personal or employer accounts; however, the bill fails to define a personal account versus an employer account. The ownership of social media accounts is a hotly litigated topic.

Most disputes about the ownership of social media surround the question of whether LinkedIn contacts, Facebook friends or Twitter followers fit the definition of customer lists. If the contacts are customer lists, trade secret laws provide the employer with the right to protect customer lists from use by former employees. If an employer expects to benefit from an employee’s use of social media, such as networking via LinkedIn, the employee should be instructed to establish a new social media account for business purposes with an agreement that the account belongs to the employer.

In preparing for the likely passage of HB 2654, employers should review their social media policies and add a statement of intent to comply. As a general reminder, any social media policy should clearly outline the employer’s expectations of how employees will use social media, warn employees that their conduct on social media sites may be subject to discipline, establish the parameters of whether use of employer equipment to access social media accounts is authorized, and identify ownership of the accounts.

Kyle Abraham is an attorney with Barran Liebman LLP. He provides compliance advice to employers and represents management in employment law litigation. Contact him at 503-276-2132 or at kabraham@barran.com.

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Many employers mistakenly believe that the National Labor Relations Act does not apply to their business because their employees are not represented by a union; however, most private-sector employers are covered by the NLRA. This past year, the National Labor Relations Board targeted nonunion employers more than ever, and some learned a painful lesson.

In 2012, the NLRB breathed new life into Section 7 of the NLRA, which provides that employees have the right “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…” The NLRB has interpreted concerted activity to include employee actions for the purpose of benefiting a group of employees.

In June, the NLRB’s chairman stated that Section 7 “is one of the best kept secrets of the NLRA, and more important than ever…” This past year, the NLRB used Section 7 to scrutinize common and seemingly innocuous handbook policies in nonunion workplaces, and launched a campaign to educate employees on Section 7 rights.

The NLRB’s dissection of mandatory arbitration agreements began in January 2012 with the case of DR Horton Inc., finding unlawful an arbitration agreement that precluded employees from filing joint, class or collective claims addressing wages, hours or other working conditions. The NLRB stated it is illegal to require employees to bring all claims on an individual basis because such a policy violates an employee’s right to engage in concerted activity.

In December, the NLRB broadened its analysis when it ruled in the case of Supply Technologies LLC and Teamsters Local 120 that an employer unlawfully fired 20 employees who refused to sign an arbitration agreement which, in the board’s view, precluded employees from filing charges with the board. The NLRB ordered the employees to be reinstated with back pay.

Employers should check their arbitration agreements to see whether they prohibit joint, class or collective claims, and consider revising agreements with these prohibitions.

This past February, the NLRB focused on at-will employment disclaimers. In the case of American Red Cross of Arizona, the employer required employees to sign an acknowledgment that stated the “at-will employment relationship cannot be amended, modified or altered in any way.” The board ruled the Red Cross’ disclaimer illegally required employees to relinquish rights to make efforts that could result in union representation.

However, in October, the NLRB’s general counsel issued a guidance memorandum explaining that some at-will employment disclaimers may be lawful so long as they do not require the employee to agree that the employment relationship cannot be changed. Employers are strongly encouraged to include an at-will disclaimer, but they should use language carefully written to avoid requiring employees to agree the at-will status cannot be altered.

With the explosion of social media, the NLRB has focused attention on handbook provisions and policies limiting an employee’s use of social media. For several months in late 2011 and early 2012, the general counsel issued guidance on social media; however, in early September, Costco became one of the board’s first victims.

Costco had a policy prohibiting employees from posting statements that damaged the company’s or any person’s reputation on social media sites. The board ruled that employees could reasonably construe this rule as prohibiting the act of protesting Costco’s treatment of its employees, which is concerted activity.

Later in September, the NLRB issued another blow against social media policies, in the Knauz BMW case. An employee, on Facebook, posted critical comments about the company’s marketing event for a new product. The employer terminated him, in part, because the post violated the company’s policy prohibiting the use of language that injures the company’s image or reputation. Much like the Costco case, the NLRB found that the policy illegally restricted the employee’s right to communicate about the terms and conditions of his employment.

In December, the board ordered a nonunion employer to reinstate five employees with back pay, after the employer fired them for bullying another employee through posts on Facebook. In this Hispanics United of Buffalo case, the victim criticized the work of five co-workers, and the co-workers posted harassing comments in response. The NLRB ruled that the responsive posts were protected in the same manner as comments made “around the water cooler.”

Going forward, employers should consider posts to be analogous to conversations during nonwork time, outside of the workplace when considering the significance of posts as the basis for employment decisions.

In 2012, the NLRB initiated an educational campaign to reach nonunion employees. The board launched a public webpage that describes the rights of employees to act together for their mutual aid and protection, even if they are not in a union. The webpage includes summaries of cases where the board found that nonunion employees were unlawfully terminated for engaging in concerted activity. The webpage is an effort to expand the board’s enforcement of Section 7 rights.

The chief lesson from the board’s activity in 2012 is that all employers, whether union or nonunion, should review employee-related policies with an experienced labor lawyer. It is uncertain how far the board will go with Section 7 rights; however, one thing is certain – gone are the good days when nonunion employers could ignore the NLRA.

Kyle Abraham is an attorney with Barran Liebman LLP. He provides compliance advice to employers and represents management in employment law litigation. Contact him at 503-276-2132 or at kabraham@barran.com.

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