Scheduling around employees taking frequent or extended leaves of absences can be complicated for retail companies looking to staff the floor during peak shopping periods.  But retail employers considering requests for leave under the Family and Medical Leave Act should be aware of a recent decision from the District of Columbia Circuit Court of Appeals finding that an employee can pursue an FMLA interference claim even though she received the leave requested.  In Gordon v. United States Capitol Police, No. 13-5072 (D.C. Cir. Feb. 20, 2015), the D.C. Circuit held that an employer who discourages an employee from taking FMLA leave may be liable for an interference claim, even if that discouragement was “ineffective.”  The lesson: don’t bully, discourage, or make employees jump through unnecessary hoops if they ask for FMLA leave.

Judy Gordon, an officer with the Capitol Police, was granted FMLA leave to address intermittent periods of severe and incapacitating depression.  Before her leave commenced, Gordon’s superiors ordered her to submit to a “fitness for duty examination” because of her FMLA request.  While waiting for the examination, Gordon was reassigned to administrative duties, resulting in a loss of $900 (the equivalent of three days’ pay).  Gordon passed the examination, was reinstated to her prior post, and took the requested FMLA leave and returned without incident.  Nonetheless, Gordon sued, asserting claims of interference and retaliation under the FMLA, and alleging that the presence of the “fitness for duty examination” on her permanent record would be detrimental to her prospects for pay increases, promotions, and transfers.

Addressing an issue of first impression for the D.C. Circuit, the court considered whether Gordon could proceed with her FMLA interference claim even though she was granted and ultimately took the requested leave.  Drawing an analogy between the interference provisions of the FMLA and the NLRA – which courts have interpreted to permit NLRA Section 8 claims based on actions that have a “reasonable tendency” to interfere with employees’ rights, regardless of whether they actual did – the court held that “an employer action with a reasonable tendency” to interfere with an FMLA right may support a valid interference claim “even where the action fails to actually prevent such exercise or attempt.”

Here, the D.C. Circuit reinstated the inference claim because it found that subjecting Gordon to a fitness for duty examination, which resulted in her loss of $900 and potentially impacted her future career prospects, would have a “reasonable tendency” to interfere with an employee’s exercise of FMLA rights.  The court also appeared to be influenced by allegations in the complaint that upper-managers frowned upon FMLA leave generally and were looking for ways to prevent Gordon from taking leave.

In its decision, the court set a low threshold for what constitutes an adverse action sufficient to support an FMLA retaliation claim.  One of the elements of a prima facie case of FMLA retaliation is a showing that the plaintiff was adversely affected by an employment decision.  The court refused to decide whether that element requires a showing of “material adversity” – as articulated for Title VII claims in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68-70 (2006) – or something less, such as any monetary loss, no matter how small – as suggested in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002).  Rather, the court concluded that the loss of $900, the equivalent of three days’ pay, was more than de minimis and met the higher “material adversity” threshold, allowing the FMLA retaliation claim to proceed.

This decision is a reminder to employers, particularly those with operations in Washington, DC, to tread carefully when processing requests for leave under the FMLA.  Although leaves of absence can be disruptive to the workforce, and employers are within their rights to make certain inquiries into the need for leave, the mere fact that FMLA leave is ultimately granted will not insulate an employer from potential liability for conduct that has the potential to dissuade an employee from requesting leave.  To avoid unnecessary litigation, employers should instruct their leave administrators and supervisors to refrain from openly questioning or criticizing an employee’s request for leave and from requiring additional certifications beyond those contemplated by the law.

On January 5, 2015, less than one month after the National Labor Relations Board (NLRB) voted to adopt a Final Rule to amend its rules and procedures for representation elections, a lawsuit has been filed in the US District Court for the District of Columbia, asserting that the Board exceeded its authority under the National Labor Relations Act (Act) when it amended its rules for votes on union representation and that the new rule in unconstitutional and violates the First and Fifth Amendments of the US Constitution.

The suit was filed by the Chamber of Commerce of the United States, Coalition for a Democratic Workplace, National Association of Manufacturers, the National Retail Federation and the Society for Human Resources Management.  It seeks an order vacating the Final Rule, declaring the Final Rule to be contrary to the Act and in excess of the Board’s statutory jurisdiction and authority and to violate the First and Fifth Amendments.

The claims raised in the suit are essentially the same as those which were raised by in an action filed in the same court in 2012, in response to the NLRB’s December 2011 adoption of a very similar set of changes to its representation election procedures.  That action also challenged the Board’s action based on what it found to be the Board’s lack of a quorum at the time it adopted those rule changes in 2011. Because the Court found that the Board lacked a quorum at that time, it found it unnecessary to address the substantive arguments about the changes in the election rules that are the essence of the new lawsuit.

While the Complaint does not indicate that the plaintiffs are seeking an order enjoining the Board from implementing the new election procedures under the Final Rule while the case is litigated, the plaintiffs are likely to request such an order as the Final Rule’s effective date of April 15th nears.  In the earlier challenge to the Board’s 2011 rulemaking, the Court granted an injunction in April 2012 enjoining the Board from putting the new rules and procedures into effect, while it considered the merits of the challenge.

While Republican members of Congress have with increasing frequency indicated their desire to reign in the Board in a variety of areas where they have seen it as exceeding its mandate or moving in directions that they do not agree with, it is almost certain that President Obama would veto such legislation and it is not likely that the sufficient support would be present to override a veto. Thus as the New York Times observed  earlier this week, those who oppose administrative actions such as this are turning increasingly to the courts in hopes of relief.

We will continue to monitor and report on developments in this closely watched case.

Our colleague Steven Swirsky at Epstein Becker Green wrote an advisory on an NLRB ruling that affects all employers: “NLRB Holds That Employees Have the Right to Use Company Email Systems for Union Organizing – Union and Non-Union Employers Are All Affected.” Following is an excerpt:

In its Purple Communications, Inc., decision, the National Labor Relations Board (“NLRB” or “Board”) has ruled that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted” by employers that provide employees with access to email at work.  While the majority in Purple Communications characterized the decision as “carefully limited,” in reality, it appears to be a major game changer.  This decision applies to all employers, not only those that have union-represented employees or that are in the midst of union organizing campaigns.

Under this decision, which applies to both unionized and non-union workplaces alike, if an employer allows employees to use its email system at work, use of the email system “for statutorily protected communications on nonworking time must presumptively be permitted . . . .” In other words, if an employee has access to email at work and is ever allowed to use it to send or receive nonwork emails, the employee is permitted to use his or her work email to communicate with coworkers about union-related issues.

Read the full advisory here.

On Epstein Becker Green’s Management Memo blog, Steven M. Swirsky reviews the National Labor Relations Board’s (“NLRB”) recent decision regarding Bergdorf Goodman’s New York Store’s women’s shoe sales employees.

Following is an excerpt from the blog post:

The NLRB finds that the women’s shoe sales employees at Bergdorf Goodman’s New York Store are not an appropriate unit for bargaining. The Board’s unanimous decision to reverse the Regional Director’s finding that the shoe sales team did constitute an appropriate unit and could have their own vote on union representation comes one week after its decision finding that a unit limited to the cosmetics and fragrance sales employees at a Macy’s in Saugus were an appropriate unit for bargaining. The Regional Directors who issued the Decisions and Directions of Election in Macy’s and Bergdorf Goodman each had relied on the Board’s Specialty Health Care decision, which is now often referred to as the “Micro Unit” decision.

To access the full blog post, please click here.

By Stuart M. Gerson

As expected, the last day of the Supreme Court’s term proved to be an incendiary one with the recent spirit of Court unanimity broken by two 5-4 decisions in highly-controversial cases. The media and various interest groups already are reporting the results and, as often is the case in cause-oriented litigation, they are not entirely accurate in their analyses of either opinion.

In Harris v. Quinn, the conservative majority of the Court, in an opinion written by Justice Alito, held that an Illinois regulatory program that required quasi-public health care workers to pay fees to a labor union to cover the costs of wage bargaining violated the First Amendment. The union entered into collective-bargaining agreements with the State that contained an agency-fee provision, which requires all bargaining unit members who do not wish to join the union to pay the union a fee for the cost of certain activities, including those tied to the collective-bargaining process. 

The Court below had agreed with the State that agency fees were justified under the Court’s earlier precedents, particularly Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977).  However, the Supreme Court’s majority, besides noting what it finds to be the weakness of Abood,  focused particularly on the fact that the employees in question were not really public employees.  Other than the fees paid to them, all of the indicia of employer status inured to the covered patients who had complete control over the selection of the workers and their conditions.

Justice Kagan, writing for the four liberal dissenters, sees the matter as allowing the straightforward application of Abood to the “fair share” provision at issue here that she argues covers all public employees. This, of course, was not the majority view. However, before proclaiming public employee unionization as seriously imperiled, as some commentators already have, please note that the majority criticized, but did not overrule, Abood. And, I’d suggest that that isn’t likely to happen anytime soon because I believe that the Chief Justice, who has attempted to be a moderating force on the Court, going back at least to the Affordable Care Act decision, and Justice Kennedy, as well, are just not going to go there. They are strong supporters of stare decisis, and they will stay that way.

An even more controversial decision is the long-awaited holding in Burwell v. Hobby Lobby Stores, Inc. Headlines already are blasting out the breaking news that “Justices Say For-Profits Can Avoid ACA Contraception Mandate.” Well, not exactly.

Over a lengthy and impassioned dissent by Justice Ginsburg, writing for the four liberals (herself and Justices Breyer, Kagan and Sotomayor), the majority, again led by the opinion of Justice Alito, held that the Religious Freedom Restoration Act of 1993 (RFRA), which prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion prevented the application to closely-held (non-public) corporations of the Affordable Care Act provision requiring that employers offer birth control coverage to their employees. The Court held that closely held for-profit corporations are entitled to religious freedom protections and, in contravention of RFRA, the government did not demonstrate that the mandate was the least restrictive means of furthering a compelling government interest.

Both sides of the discussion are hailing Hobby Lobby as a landmark in the long standing public debate over abortion rights. It is not EBG’s role to enter that debate or here to render legal advice, but we respectfully suggest that the decision’s reach is already being overstated by both sides.  In the first place, the decision does not allow very many employers to opt out of birth control coverage – only closely-held for-profit companies that have a good-faith ideological core, as clearly was the case for Hobby Lobby. That renders such companies functionally the same as non-profits that are exempted from the mandate by the government. Publicly-held companies are not affected by the decision (though some are likely to argue that Citizens United might require such an extension. Nor are privately-held companies that can’t demonstrate an ingrained belief system.

Moreover the decision implies a number of significant qualifications.  For example, RFRA doesn’t shield  employers who might cloak illegal discrimination (e.g., against gay people or racial minorities) as a religious practice.  Moreover, the decision concerns only the contraceptive mandate and doesn’t necessarily mean that all mandates must fail if they conflict with an employer’s an employer’s religious beliefs. Importantly, Justice Kennedy’s concurring opinion suggests that the government could pay for the coverage itself, so that women receive it. It is not unlikely that the Obama administration will seek to do just that.  In any event, per the majority, the government’s shortcoming was that it hadn’t shown that the mandate was the least restrictive means to accomplish its end. 

Not only did Justice Kennedy concur in a manner overtly respectful of the dissent, but the fact that Chief Justice Roberts didn’t assign the opinion to himself strongly suggests that he is not prepared to stand in a position of strong conflict with the Court’s liberals but instead to be a mediating figure.

The number of unanimous opinions of the Court this term has been the highest in recent years. Notwithstanding the inherently divisive nature of the two controversial opinions decided today, one thinks that it is not unlikely that greater concord will be the hallmark of the Roberts Court as it was for the Warren Court in earlier times.

 By Anna A. Cohen

In its Agency Rule List for Spring 2014, the U.S. Department of Labor (DOL) has proposed to amend the Regulations implementing the Family and Medical Leave Act (FMLA) by revising the definition of “spouse” in light of the United States Supreme Court’s decision in United States v. Windsor, No. 12-307 (U.S. June 26, 2013).   In Windsor, the Supreme Court struck down the provisions of the Defense of Marriage Act (DOMA) that denied federal benefits to legally married, same-sex couples.  The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. Eligible employees may take FMLA leave, among other reasons, to care for the employee’s spouse who has a serious health condition.

1. Place of Residence Definition

In August 2013, the DOL issued updated FMLA guidance documents as a result of President Obama’s directive to the DOL to coordinate with other federal agencies to implement the Windsor decision.  This initial guidance removed references to DOMA, affirming the availability of spousal leave based on same-sex marriages under the FMLA; however, the DOL only expanded benefits to same-sex married couples residing in states that recognize same-sex marriage.  For example, updated DOL Fact Sheet # 28F: Qualifying Reasons for Leave under the Family and Medical Leave Act defines a “spouse” as “a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including ‘common law’ marriage and same-sex marriage.”  This narrow definition of “spouse” is significant to retailers with locations in multiple states since only 19 states, to date, recognize same-sex marriage, whether by court decision, legislation or popular vote.  If the DOL codifies the place of residence definition of “spouse,” retailers with employees in a same-sex marriage who work in a state where their marriage is legally recognized, but live in a state where it is not, would not be entitled to FMLA benefits to care for their spouse. 

2. Place of Celebration Definition

Another option would be for the DOL to broaden the definition of “spouse” to recognize legally married individuals under any state law, regardless of the employee’s residence.  This definition would be consistent with the DOL’s September 2013 Guidance to employee benefit plans, which took a “place of celebration” approach to the definition of “spouse” and “marriage” for purposes of the Employee Retirement Income Security Act (ERISA).  In its ERISA Guidance, the DOL defined the term “spouse” as any “individuals who are lawfully married under any state law, including individuals married to a person of the same sex who were legally married in a state that recognizes such marriages, but who are domiciled in a state that does not recognize such marriages.”  If the DOL were to adopt the broad place of celebration definition of “spouse” contained in its ERISA Guidance when it amends the FMLA Regulations, FMLA benefits would be available to all legally married spouses, regardless of the definition of “marriage” in the state where the employee lives or where the employer operates.  Accordingly, employers would look to the place of celebration to determine whether employees are entitled to spousal benefits under the FMLA.  For example, retailers with employees who legally enter into a same-sex marriage in the Northeast would be considered legally married for purposes of the FMLA in all of the retailer’s locations, even if they subsequently live or work in a state which does not recognize that marriage.  

Regardless of the definition adopted by the DOL, employers in all states must be alert to this impending change.  Once the FMLA Regulations are amended, employers should review all FMLA-related policies, procedures, forms and notices.  Employers should also be aware of their obligations under state and local leave laws that may provide greater leave rights than the FMLA, such as leave to care for same-sex partners in civil unions or domestic partnerships. We will continue to monitor the DOL’s position on same sex marriage as it affects the FMLA and other laws and regulations.

On Epstein Becker Green’s Management Memo blog, our colleague Adam C. Abrahms writes about the Department of Labor’s delay, once again, of its timeline for finalizing the Persuader Rule.

Below is an excerpt from the blog post:

As we noted in “First Kill All The Lawyers,” last November the DOL announced its intention to move forward this month with the Administration’s Proposed Rule change which would eviscerate the Advice Exemption to the Persuader Rule . Yesterday, the DOL again delayed its timeline for finalizing the Rule.

In November the DOL’s announcement asserted that it intended to publish a Final Rule in March. On March 6, according to Bloomberg BNA, a DOL spokesman asserted that the Proposed Rule would NOT be made final this month. The DOL did not give a new target date for finalizing the Rule, rather it stated it would provide a new date in its Spring Regulatory Agenda which is not scheduled to be released for some months.

Read the full blog post, “Persuader Rule Postponed: Employers Get Temporary Reprieve from Assault on Attorney-Client Privilege.”

By: Adam C. Abrahms

Yesterday, in his first public address since being confirmed by the Senate, NLRB Board Member Kent Y. Hirozawa shared with the attendees of EBG’s 32nd Annual Client Labor and Employment Briefing his views on the current Board and what to expect from it.

His address, coming the day before Halloween, had all the “BEWARE” foreshadowing of a good ghost story; unfortunately for employers, the potential horrors may not be tricks or treats.

Board Poised For an Active and Productive 2014

As we noted here, when Hirozawa was confirmed as part of a package deal in July the Board had its first full complement of 5 confirmed members in over a decade. During his address Hirozawa explained how important it is for the Board to have confirmed members as it provides them a greater ability to efficiently and freely issue decisions without disruptions. He also noted that having a full complement of 5 members enables the Board to be 67% more productive.

Although acknowledging that the new Board has needed some time to get up to speed, something certainly not helped by the government shut down, Hirozawa asserted it is now poised for action. Hirozawa commented that the Board has a large backlog and that the Board is committed to reducing it quickly. He made it clear to the audience in attendance that there were cases in the pipeline and that parties and practitioners should expect the decisions to start issuing.

Given its current composition, an active and productive Board is likely not a good thing for employers.

Hirozawa Discloses Board Agenda

Hirozawa’s remarks went on to discuss the areas where the Board was likely to focus in the coming months and into 2014. Specifically, he noted that Chairman Pearce was likely to drive the Board back towards rule-making. As we discussed here and here, the Board has previously attempted to impose a requirement that employers post a Notice of Emplooyee Rights but the rule was rejected by the Courts. A new fully confirmed Board may take another stab at it.

Hirozawa specifically noted that the Board is likely to readdress election procedure regulations. Although Hirozawa did not talk is such terms, the attendees understood this meant that the so called “Ambush Election” may be on the horizon again. As readers will recall the Board’s last attempt at streamlining the election proceduce was invalidated on a technicality. Again, now with a fully confirmed, and arguably more pro-labor, Board, employers need to beware of what new election regulations might look like.

In addition to rule-making, according to Hirozawa, the Board is likely to continue addressing (and likely expanding on) the same issues that plagued employers under the unconstitutionally consisted Board of the last couple years. Specifically, Hirozawa noted that the Board is likely to issue more rulings on asserted infringements on Section 7 rights in arbitration agreements under D.R. Horton, Inc. and work rules like at-will, off-duty access, social media, confidentiality and other policies. In fact, the clear implication was that the Board very well may find even more categories of seemingly benign employer policies which “chill” or interfere with an employee’s exercise of Section 7 rights.

Ultimately, Hirozawa’s first public address established him as firmly in control of his new role, informed and engaged, however, it also made clear that employers could expect an active and likely unfriendly 2014 from the Board.

Management Missive

  • Employers should expect the frequency of Board decisions to pick significantly in the coming months and those with cases pending should be prepared to receive their ruling sooner than they may have expected.
  • With NLRB rule-making back on the front-burner, non-union employers should examine their union avoidance strategies and programs and explore proactively inoculating against organizing before the rules shift even more in favor of labor.
  • All employers should take a close look at their policies and work rules from a Section 7 perspective.

by: Adam C. Abrahms, James S. Frank, Kara M. Maciel, and Steven M. Swirsky

President Obama has taken action designed to bolster the National Labor Relations Board’s continuing move to bolster unions and take the National Labor Relations Act further into non-union workplaces. On April 9, 2013, President Obama announced his plan to submit three more nominees to serve the National Labor Relations Board (“NLRB”). If these and the two other pending nominations are confirmed this would bring the NLRB to its full complement of five Members.

These new nominations – who must be confirmed by the U.S. Senate – were announced against the backdrop of the NLRB v. Noel Canning decision in which the U.S. Court of Appeals for the D.C. Circuit ruled that the NLRB now lacks constitutional authority to act because the recess appointments previously made by President Obama in January 2012 were not valid. The NLRB plans to appeal the D.C. Circuit’s decision to the U.S. Supreme Court by April 25, 2013.

The three new nominations include the current NLRB Chairman, Mark Gaston Pearce, and two Republicans, Harry I. Johnson, III, and Philip A. Miscimarra, both lawyers in private practice. While Mr. Johnson and Mr. Miscimarra both have represented management over their careers, Chairman Pearce came to the NLRB from a practice representing unions.

Mr. Pearce has served as NLRB Chairman since August 2011, and has been a Board Member since March 2010. Previously, Mr. Pearce, who started his career at the Board’s Buffalo, New York Regional Office in 1979, was a founding partner of Creighton, Pearce, Johnsen & Giroux from 2002 to 2010. Before founding the Creighton, Pearce firm, Mr. Pearce worked as an associate and junior partner at Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria LLP from 1994 to 2002.

Harry I. Johnson, III is a partner with Arent Fox LLP. Previously, Mr. Johnson worked at Jones Day from 1994 to 2010. Mr. Johnson received a B.A. from Johns Hopkins University, an M.A.L.D. from Tufts University’s Fletcher School of Law and Diplomacy, and a J.D. from Harvard Law School.

Philip A. Miscimarra is a partner with Morgan Lewis & Bockius LLP, a position he has held since 2005. Since 1997, Mr. Miscimarra has also been a senior fellow at the University of Pennsylvania’s Wharton Business School. Mr. Miscimarra received a B.A. from Duquesne University, an M.B.A. from the University of Pennsylvania’s Wharton School of Business, and a J.D. from the University of Pennsylvania Law School.

President Obama previously submitted the nominations of Richard F. Griffin, Jr. and Sharon Block, who are currently serving as Board Members but whose recess appointments were struck down as invalid by the D.C. Circuit in Noel Canning. Member Block came to the NLRB from the US Department of Labor. Both of those nominations are before the Senate.


Considering that all five nominations must now be confirmed by the Senate, where the Republican minority has frequently blocked the President’s nominations, it is unclear how and when the Senate will respond, and whether the NLRB will enjoy a full complement of Members in order to conduct lawful business any time soon. Merely announcing the nominations will not pave the way immediately for a full, validly appointed NLRB. Indeed, it may not be until the next Congress, following the 2014 mid-term elections that the Senate even considers a package deal with the White House.

If a compromise could be achieved and all five Members were sworn-in this year or next, the Board would continue with a liberal, union-friendly majority with Chairman Pearce and Members Griffin and Block. They could be expected to continue a pro-union agenda, which would certainly bring continued aggressive enforcement and further broadening of the Board’s view of protected, concerted activity and the Act’s application in non-union workplaces. Moreover, there will be many questions about whether a new NLRB will be able to cure prior decisions that were put into doubt by Noel Canning.

For now, our advice and recommendations to employers remains the same as following the ground-breaking decision of Noel Canning. Employers should closely monitor how courts in their jurisdictions decide similar cases challenging the recess appointments, and watch how the Supreme Court will address it next term, should it take the NLRB’s petition for certiorari, while watching to see what happens in the Senate.

by Adam C. Abrahms

Continuing its effort to “outreach” to non-union employees and educate them on their rights under the National Labor Relations Act, the NLRB has launched a new webpage on Concerted Activity.  The NLRB’s announcement  of its new webpage made clear the page is designed to inform employees of their rights “even if they are not in a union.”

The webpage, in addition to giving basic descriptions of concerted activities, asserts that “The law we enforce gives employees the right to act together to try to improve their pay and working conditions or fix job-related problems, even if they aren’t in a union.”  The main feature of the webpage is an interactive map of the United States which highlights cases from various regions as examples of the Board’s activities on behalf of non-union employees who were engaged in activity the Board considers protected even though it is unrelated to union organizing.  Examples include cases involving employees complaining about safety issues, employees posting statements on Facebook and videos on YouTube critical of the employer, employees discussing workplace issues with the news media, employees “violating” an employer handbook’s unlawful confidentiality policy and employees  signing letters to management complaining about wage cuts.

The new webpage is part of the NLRB’s concentrated effort to inform non-union employees of the rights protected by the Act and the availability of the agency as a resource to employees who feel they had their rights violated.  This new webpage should be viewed in the same vein as the Board’s parallel efforts to require all employers to post  a “Employee Rights Notice Posting,” print and distribute brochures and bring media attention to its aggressive pursuit of cases involving employers’ social media policies.  While the posting requirement has been enjoined by the U.S. Court of Appeals, the other more informal efforts of education and outreach like the webpage, brochures and media attention cannot be challenged and are likely to continue to expand.

In announcing the new webpage NLRB Chairman Mark Gaston Pearce made the agency’s goal clear, stating:

A right only has value when people know it exists…  We think the right to engage in protected concerted activity is one of the best kept secrets of the National Labor Relations Act, and more important than ever in these difficult economic times. Our hope is that other workers will see themselves in the cases we’ve selected and understand that they do have strength in numbers.

Given the NLRB’s continuing efforts, employers must be more mindful than ever that their policies and actions could be scrutinized by an aggressive National Labor Relations Board even if they do not have a union.  As the agency’s efforts continue, employers should expect more employees to be aware of their option to bring complaints to the Board for adjudication.  When employees do so, employers can also expect for the agency’s investigation to reach not only the specific incident involving the complaining employee but potentially the lawfulness of the employers’ general policies and procedures.  Either way, employers must consider whether their policies and actions impact or interfere with protected concerted activity even where there is no union present.