Another Month, Another Release of NLRB Advice Memos – Independent Contractors, No-Recordings and Conflict of Interest Rules


The National Labor Relations Board’s Office of the General Counsel (OGC) continues to issue Advice Memoranda, as it has done throughout 2018 and as we previously discussed in many of our monthly E-Updates. Five additional memos were issued on September 14, 2018, one of which was originally prepared years earlier, with the others being more recent. Of particular interest are the following:

  • Blue Cross Blue Shield of Tennessee, Inc. (August 10, 2018). Utilizing the Board’s new balancing test set forth in The Boeing Company, which we discussed in a December 2017 E-Lert, the OGC found that the employer’s prohibition on workplace recordings was a “Category 1” rule – meaning that it was lawful. Additionally, an employee was not engaged in protected concerted activity under the National Labor Relations Act (NLRA) in making or sharing the recording, because the employee’s purpose was to protect only his or her individual interests, and not that of a group of employees. Therefore, the employer lawfully discharged the employee for lying about sharing the recording.
  • Washington Post (July 6, 2018). The OGC found an ethics policy prohibiting employee-reporters from publishing freelance articles with a competitor to be a lawful Category 1 conflict-of-interest rule, banning disloyal conduct. Although the maintenance of the rule was lawful, the OGC found that the application of the rule to discipline an employee who engaged in protected activity – an article criticizing the employer’s treatment of its employees – to violate the NLRA. 
  • Telemundo Television Studios (June 13, 2017). The OGC found that, in accordance with Pacific 9 Transportation, the misclassification of employees as independent contractors is a violation of the NLRA. Moreover, the employer studio was derivatively liable for the violation as a joint employer with talent managers who provided the misclassified performer-employees to the studio. As we noted in our February 2018 E-Update, however, General Counsel Peter Robb has indicated an interest in reviewing this controversial misclassification issue, as set forth in his December 1, 2017 memorandum, GC 18-02“Mandatory Submissions to Advice” and the Board has subsequently invited the public to submit briefs on this issue.
  • Menards (April 19, 2018). According to the OGC, independent contractors, and not just employees, are protected by the NLRA from retaliation for their testimony in Board proceedings.