Seyfarth Synopsis:
Last week, the NLRB held in a 2-1 decision that an employer’s rules restricting certain types of employee communications on social media were lawful under the NLRA. However, the Board panel was sharply divided between its Republican majority and Lauren McFerran, its sole Democratic member. In a strongly worded dissent, Member McFerran took issue with the ruling, signaling that this pro-employer stance may be on the NLRB’s chopping block once a Democratic majority is installed under the Biden Administration.
For many years, the direction of the National Labor Relations Board has sharply oscillated depending on which political party has comprised the majority of its Members, and the divide between Republican and Democratic Board Members has been especially sharp in cases involving employer rules and policies. Under the Obama Administration, the Board found that many common workplace policies were unlawful under the National Labor Relations Act because