DOL Wage and Hour Division Targeted Enforcement – How Vulnerable Are You?

November 5th, 2013

In July, I wrote “Wage and Hour is Increasing its Visibility and Ramping up FLSA Enforcement.”  This month’s article concentrates on the Wage and Hour Division (WHD) component of the DOL strategic plan.  Some employers are much more affected than others.

Wage and Hour Division strategic planning invariably involves enforcement initiatives in targeted industries.  Employers of “low-wage” employees are always
given a high priority, because

  • violations are common,
  • employees are less likely to know how to file a complaint with the WHD, and
  • employees are reluctant to file a complaint or to seek out a plaintiffs’ attorney.

Many employers considered to employ vulnerable workers treat the workers as “independent contractors,” subcontract the work, or utilize
third parties to pay the wages.  These employers are targeted for investigation under the portion of the strategic plan that deals with “fissured industries.”  By applying the broad FLSA employment relationship concepts, the WHD is usually able to establish that the principal is an employer (i.e., that the “independent contractors” are actually
employees).  If there are legitimate subcontractors, the WHD develops evidence to establish that the principal (or prime contractor) and the subcontractors are joint employers.  When a third party pays the wages (e.g., a staffing or temporary help firm, professional employer organization, or contract administrator), there are usually two or more joint employers.  All responsible entities and individuals are obligated to achieve and maintain compliance.

Examples of fissured industries mentioned in the strategic plan:

  • Construction
  • Transportation and Warehousing
  • Agriculture
  • Home Health Care
  • Child Care
  • Janitorial
  • Meat and Poultry Processing
  • Hotel/Motel
  • Personnel Services (including temporary help and
    staffing firms)

Other examples of fissured industries based on DOL press releases regarding investigation and litigation activity:

  • Cable/Satellite Television
  • High-Speed Internet
  • Telephone
  • Retail Floor Covering
  • Apparel Manufacturing
  • Forestry and Logging

Two other categories of vulnerable workers mentioned in the strategic plan are:

  • Individuals with disabilities employed by certificate holders under Section 14(c) of the FLSA
  • Employees in statutory programs for which there is no private right of action

Consequently, it appears that work centers utilizing § 14(c) certificates and federal contractors (service and construction) are included in
the targeted investigation program.

Child labor enforcement is a priority, based on this statement in the strategic plan: “As stated previously, vulnerable workers are those who are at risk of exploitation at work, such as young workers —.”  See “FLSA Child Labor Provisions – Even Inadvertent Violations Can Be Expensive” in the June 2012 BizKeys BIZWatch newsletter.

Additional industries that employ vulnerable workers and that are often included when targeted enforcement is planned:

  • Landscape
  • Restaurant and/or Catering
  • Guard Services
  • Health Care Facilities

Employers of homeworkers are often targeted for several reasons:

  • Employees who work at home are vulnerable workers
  • Homeworkers are often not paid overtime wages
  • Inadequate piece rates may result in minimum wage violations
  • Expenses (e.g., equipment investment and maintenance) cause minimum wage violations
  • Poor hours worked records (specific FLSA record keeping requirements apply)
  • Fissured industries (homeworkers are often incorrectly classified as “independent contractors”)
  • Family members may assist, resulting in record keeping, monetary, and/or child labor violations

The DOL strategic plan for fiscal years 2011 through 2016 may be viewed at http://www.dol.gov/_sec/stratplan/StrategicPlan.pdf.
Pages 55 through 57 discuss plans for DOL outreach to vulnerable workers.  Pages 30 through 32 include several WHD plans and goals.  These excerpts will be of interest to most employers:

Protecting Vulnerable Workers

By concentrating its enforcement resources on increasing the percentage of vulnerable workers employed in compliance with the laws that the agency
enforces, WHD can ensure that workers receive the wages and overtime that they have legally earned – fair compensation. As stated previously, vulnerable
workers are those who are at risk of exploitation at work, such as young workers and workers who are reluctant to file complaints when they are subject
to violations at work. Vulnerable workers also include those that are employed in fissured industries – those sectors that increasing rely on a wide
variety of organizational methods that have redefined employment relationships: subcontracting; third-party management; franchising; independent contracting;
and other contractual forms that alter who is the employer of record or make the worker-employer relationship tenuous and less transparent. 12 These
are industries in which the employment relationship is splintered and the beneficiary of the labor is distanced from the workers who are providing the labor.
Employers in these industries often fail to recognize or classify such workers as employees, which leave the workers subject to unfair treatment and disparate
wages. Other vulnerable workers include individuals with disabilities and those employed in statutory programs for which there is no private right of action
and for whom the government offers the only remedy. WHD’s focus on workers employed in these programs and industries contributes to the Department’s
efforts to ensure fair compensation.

Targeting Fissured Industries

WHD’s enforcement program is guided by several key strategic principles. WHD’s directed investigations will be concentrated in high-risk fissured industries
that employ vulnerable workers or in program areas in which workers are at a higher risk of exploitation. High-risk industries include the agricultural,
janitorial, construction, and hotel/motel industries. WHD has begun measuring compliance levels and the severity of violations in these industries by
conducting baseline investigation-based compliance evaluations. These evaluations, in addition to providing measures of compliance, inform WHD on the
likely causes of violative behavior and point to strategies for addressing high violation rates industry-wide. WHD will continue to conduct investigation-based
compliance evaluations to determine the percent of prior violators who come into and stay in compliance with the provisions of the FLSA.

The Wage and Hour Division FY 2013 Congressional Budget Justification (http://www.dol.gov/dol/budget/2013/PDF/CBJ-2013-V2-09.pdf)
includes indications of the WHD’s priorities.  Relevant portions of that document state:

Page
WHD -13

WHD’s enforcement priorities are to ensure that the most vulnerable workers are employed in compliance with wage and hour laws.

Vulnerable workers are most frequently employed in high-risk industries, specifically industries with subcontracting, franchising, temporary employment, independent
contracting, and other contingent workforce characteristics. The employment relationship in these industries is often splintered and the beneficiary of the
labor is distanced from the workers who actually provide the labor by multiple layers of contracting. Vulnerable workers also include young workers,
agricultural workers, workers with disabilities, and those workers employed in statutory programs for which there is no private right of action. Employers
fail to classify such workers as employees leaving them without critical benefits, protections and disparate wages. The common thread among vulnerable
workers is a reluctance to complain of unfair or illegal treatment and the lack of opportunities to or knowledge about exercising their rights in the workplace.

Page WHD – 17

Vulnerable Workers: By concentrating its enforcement resources on increasing the percent of vulnerable workers employed in compliance with the laws that the agency
enforces, WHD can ensure that workplaces are safe and healthy and that workers receive fair compensation. Vulnerable workers are those who are at risk of
exploitation at work, such as workers who are reluctant to complain when they are subject to violations for fear of retaliation. WHD’s efforts to increase compliance
in the agricultural industry and among agricultural and young worker populations to whom additional safety and health standards apply specifically contribute to this outcome.

Vulnerable workers also include those that are employed in industries with subcontracting, independent contracting, and other contingent workforce characteristics.
Employers often fail to classify such workers as employees leaving them subject to unfair treatment and disparate wages. In FY 2012, WHD is focusing on industries
where independent contracting is just emerging as a business practice. The focus on independent contracting and the misclassification of employees as
independent contractors will continue in FY 2013. Other vulnerable workers include individuals with disabilities and those employed in statutory programs
for which there is no private right of action. The results of a FY 2010 survey of the compliance level of Community Rehabilitation Program certificate holders
under Section 14(c) of the FLSA showed a low level of compliance necessitating a reenergized commitment by WHD to these vulnerable workers.

Page
WHD – 18

WHD’s focus on workers employed in these programs and in these industries contributes to the Department’s outcome effort to ensure fair compensation.

Worker Protection Strategies: In FY 2013, WHD will continue to employ resource-leveraging strategies and technologies to affect compliance with the
labor laws within its enforcement jurisdiction. The agency will continue to use its directed investigations to increase WHD presence in high risk industries,
i.e., those industries with high minimum wage and overtime violations and among vulnerable worker populations where complaints are not common. Obtaining
corporate-wide compliance, securing future compliance, and deterring future violations in industry sectors and among employers also supports the
Department’s outcome goal of securing fair compensation.

Penalties, sanctions, the FLSA hot goods provision, and similar strategies will be used as appropriate to ensure future compliance among violators and to deter violations
among other employers. WHD will pursue corporate-wide compliance strategies designed to ensure that employers take responsibility for their compliance
behavior. Public awareness and outreach to workers will be targeted to worker populations and industries in which workers are reluctant to report violations.
Outreach will be designed to reduce the perceived risk of filing a complaint with WHD and to increase the benefit to employees and their co-workers of
reporting violations. Employees and the worker advocate groups will be encouraged to report violations of WHD laws through a variety of means. The
newly-implemented ABA-referral system provides a valuable service to employees and allows WHD to shift resources to program areas that have no private right
of action.

Page
WHD – 19

WHD will leverage its partnership arrangements with other federal, state and local agencies, and with worker and community-based organizations to satisfy the
following criteria: the partnership should benefit the overall workforce, be a means for disseminating information on rights and/or obligations, and mitigate
the fear of retaliation among workers who seek assistance in remedying violations. Stakeholder coordination will provide avenues for information gathering on compliance issues and will provide opportunities to develop meaningful compliance assistance tools. Public information releases, issued through various news media and new technologies will be used to inform the public of WHD laws, compliance actions taken, and penalties assessed. Press releases, in turn, have the potential of deterring violations among employers in a given geographic area.

As a synopsis, this is an alphabetical list of the
industries and employment scenarios that, in my opinion, are most likely to be targeted for investigation by the Wage and Hour Division:

Agriculture

Apparel Manufacturing

Cable/Satellite Television

Child Care

Construction

Employers of Homeworkers

Employers of Minors (child labor enforcement)

Federal Contractors (service and construction)

Forestry and Logging

Guard Services

High-Speed Internet

Health Care (e.g., nursing homes and hospitals)

Home Health Care

Hotel/Motel

Janitorial

Landscape

Meat and Poultry Processing

Personnel Services (including temporary help and staffing firms)

Restaurant and/or Catering

Retail Floor Covering (e.g., carpet and tile installation)

Telephone systems installation and maintenance

Transportation and Warehousing (especially courier and
delivery services)

Work Centers (§ 14(c) certification)

Limited resources of the WHD will not allow all of the above to receive national priority, but regional and
local enforcement initiatives will include some of them.

How vulnerable are you?  If you are included in the above list, there is a much higher probability that your organization will be scheduled for
investigation.  Even without “targeting,” investigations of these types of employment are common, and they generally yield violation findings.  If the WHD district
office that serves your area selects your industry as a part of its local strategic plan, the probability of investigation more than doubles, in my opinion.

All employers are encouraged to maintain compliance with the FLSA and other WHD statutes.  However, if you are included in one of the probable targeted industries or scenarios, I encourage you to take steps to “get your house in order” before the WHD pays a visit.  The Wage & Hour Self-Audit Guide, in the Self Auditing area of www.BizKeys.com, will be helpful.

When a Wage and Hour Division investigation results in Fair Labor Standards Act (FLSA) violation assertions, what types of legal action may be initiated by DOL?

October 27th, 2013

When a Wage and Hour Division investigation results in Fair Labor Standards Act (FLSA) violation assertions, what types of legal action may be initiated by DOL?

By: Morris Jennings

Wage and Hour Consulting Services

Last month’s “OFF THE CUFF” discussed the most common factors that trigger litigation or administrative legal action by DOL. This article is related, in that the actual types of legal action are reviewed.

The most common types of FLSA legal actions filed by DOL are:

  • Suit to recover unpaid minimum wage and/or overtime compensation, plus liquidated damages (generally equal to the back wages)

 

  • Injunctive action, to obtain both future and retroactive compliance

 

  • “Hot goods” action*, seeking a civil injunction restraining the removal of goods for shipment in interstate or foreign commerce

 

  • Suit to recover unpaid civil money penalties (if the defendant failed to contest the penalty assessment or has exhausted administrative appeals)

 

  • Administrative legal actions may come into play subsequent to civil money penalty assessment. If the employer contests the assessment, a hearing is scheduled before a DOL administrative law judge.

 

*A “hot goods” action is usually filed when there is a need to quickly prohibit shipment of “tainted goods” by obtaining a temporary restraining order. This type of litigation is intended to pressure an offending employer to promptly achieve compliance and pay back wages under DOL supervision. It is possible for “hot goods” litigation to be filed under criminal provisions of the FLSA, but the usual approach is civil injunctive action. The injunction is normally sought against the offending employer (the producer of the goods). If the producer has already shipped the goods, the possessor of the goods (other than a common carrier or the ultimate consumer) may be sued to restrain further shipment into commerce.

Civil action that seeks a court order requiring payment of back wages reaches back three years when willfulness is proved. Absent willfulness, the standard FLSA two-year statute of limitations applies.

The FLSA includes a provision that allows the filing of criminal charges against an employer. The WHD District Directors instruct investigators to prepare the most egregious cases for criminal prosecution, based on WHD National Office policies. As criminal development of a case is done against the worst offenders, and the FLSA allows for imprisonment only after a second conviction, the case development includes sufficient evidence to also permit charges of violations of other federal criminal statutes (e.g., mail or wire fraud, peonage, or slavery). Conviction on such multiple counts may result in a prison term, even for first offenses.

The DOL Office of the Solicitor litigates only civil and administrative law cases. Criminal cases are prosecuted by the U. S. Department of Justice. It has been my experience that DOL believes civil litigation to be sufficient in most cases. FLSA criminal litigation is rare, but I see an occasional DOL news release about a conviction of an employer who had been charged with criminal violations of the FLSA (and usually other statutes).

In addition to the legal actions described above (that may be filed by the DOL Office of the Solicitor or the DOJ United States Attorneys), employees have a private right to file suit for recovery of unpaid minimum wage and/or overtime compensation, liquidated damages, court costs, attorney fees, etc.

See http://www.dol.gov/elaws/esa/flsa/screen74.asp for a synopsis of how the DOL Wage and Hour Division enforces the FLSA.

The author, a former enforcement agent with the DOL Wage and Hour Division, offers consultation and technical guidance to attorneys and employers. You may contact him at Morris@FLSA-SCA.com or 866-895-3572.

Tips, Gratuities, and Service Charges – What are the FLSA Rules?

April 25th, 2013

There has recently been publicity about IRS clarification of the differences between
tips and service charges. Several articles indicate that prior IRS guidance was
ambiguous. See http://www.irs.gov/irb/2012-26_IRB/ar07.html for the new IRS
rule (Internal Revenue Bulletin 2012-26,
June 25, 2012).

The DOL position concerning service charges, for Fair Labor Standards Act (FLSA)
purposes, has been clear for more than four decades. Other than the IRS citation
above, this article is limited to the FLSA.

The title is redundant for a reason – to include all three related terms. Tips and
gratuities are actually interchangeable terms. However, some employers have a
tendency to inaccurately refer to a service charge as a “gratuity.” This can
result in record keeping and overtime violations.

Employers often misunderstand the differences between tips and service charges. A good
grasp of these differences will enable an employer to achieve and maintain
compliance with FLSA record keeping, minimum wage, and overtime compensation
provisions.

While the DOL position regarding service charges has been clear over the years, tips
are another matter. DOL guidance and enforcement policies (regarding tips) have
varied because of statutory changes, ambiguity of the FLSA provisions, and (prior
to April 5, 2011) obsolescence of regulations.

The hospitality industry dominates when there are concerns about tips and service
charges, but many other types of business are also affected.

Tip and service charge comparisons, and FLSA considerations:

  1. A tip or gratuity is given voluntarily by the customer. A charge added to the ticket
    (usually a percentage) based on the establishment’s policy is generally viewed
    by DOL as a service charge.
  2. A tipped employee may be paid wages of less than the minimum wage (but no less than
    $2.13 per hour), if tips received and retained bring the employee’s wage rate
    up to the minimum wage. This computation is done on a workweek basis. If tips
    are insufficient, supplemental pay is required.
  3. Employers of tipped employees, even if the full minimum wage is paid and no “tip credit” is
    taken, must abide by very strict rules regarding confiscation or sharing of
    tips. For the DOL response to an adverse Ninth Circuit decision, see http://www.dol.gov/whd/FieldBulletins/fab2012_2.htm and http://www.dol.gov/whd/regs/compliance/whdfs15a.htm.
  4. Tip credit is not allowed for hours of work in a non-tipped job (e.g., cook, janitor, etc.).
  5. Tips do not increase the regular rate for overtime purposes.
  6. See http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=48d6ee3b99d3b3a97b1bf189e1757786&rgn=div5&view=text&node=29:3.1.1.1.13&idno=29#29:3.1.1.1.13.2.89.18 for the
    record keeping requirements with respect to tipped employees (29 CFR, Part 516,
    §516.28).
  7. Service charges, not subject to the rigid tip rules, may be retained by the business,
    distributed to various employees, and/or paid over to employees who dealt
    directly with the customers.
  8. To the extent that service charges are paid to an employee, this remuneration must be
    included in the employee’s total weekly regular wages. See §516.2 of the record
    keeping regulations at http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=48d6ee3b99d3b3a97b1bf189e1757786&rgn=div5&view=text&node=29:3.1.1.1.13&idno=29#29:3.1.1.1.13.1.89.1.
  9. Service charges paid to an employee count toward meeting the minimum wage requirement.
  10. Service charges received by employees increase the regular rate for record keeping and
    overtime computation purposes.
  11. An employee of a “retail establishment” who is paid primarily on the basis of percentage-based
    service charges might qualify for an overtime exemption. http://www.dol.gov/whd/regs/compliance/whdfs20.htm provides a synopsis of the exemption requirements.
    See also §§ 779.410 – 779.420 at http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=48d6ee3b99d3b3a97b1bf189e1757786&rgn=div5&view=text&node=29:3.1.1.2.40&idno=29#29:3.1.1.2.40.5.303. This is a
    highly technical exemption and must not be considered without a cautious review
    of the prerequisites and a scrutiny of the employment scenario.

During my DOL career, I asserted back wage liabilities on numerous occasions when
employers had failed to compute proper overtime compensation for tipped and/or
service charge employees. As an FLSA consultant, I have assisted clients who
were making these types of mistakes. An employer will find it easier to
understand the overtime concepts when tips and/or service charges are involved
if the overtime wages are viewed as additional half-time pay (not as
“straight-time plus time and one-half”). The result, of course, must be time and one-half.  All of the wages, for all of the hours
worked, are initially determined (on the basis of a workweek). This is the regular pay. Total regular pay divided
by total hours worked equals the regular rate. This is the average hourly rate, for the workweek, that is being paid
for all of the hours of work. The regular rate is never less than the minimum wage; it is likely to exceed the
minimum wage if service charges are involved or if an employee has worked
non-tipped hours at a rate higher than the minimum wage. One-half of the
regular rate times the overtime hours equals premium overtime pay for the
workweek. A review of the record keeping regulations, previously linked, is
helpful in this regard. Also see http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr;sid=ad743bd49d828e6ffa1f97829ae7b77c;rgn=div5;view=text;node=29%3A3.1.1.2.39;idno=29;cc=ecfr.

If a tipped employee is paid a cash rate of the full
minimum wage, or greater, the rate paid is the regular rate (unless there are
supplements that increase the rate, such as commissions, bonuses, or service
charges). True tips do not increase the regular rate.

If a tipped employee is paid a cash rate (not less
than $2.13 per hour) of less than the full minimum wage, the regular rate is
the minimum wage. In such a case, the additional half-time compensation owed
for overtime hours is .5 times the minimum wage (not one-half of $2.13).

If there are some hours worked during the workweek in a non-tipped occupation, at least the
minimum wage must be paid for each of those hours (no tip credit). If such
hours are paid at a rate in excess of the minimum wage, the weighted average
rate for the workweek will be greater than the minimum wage.

If there are some hours worked during the workweek in a non-tipped occupation, at least the minimum wage must be paid for each of those hours (no tip credit). If such hours are paid at a rate in excess of the minimum wage, the weighted average rate for the workweek will be greater than the minimum wage.

Service charges paid to an employee count toward meeting the minimum wage, as do tips,
but they may increase the regular rate to above the minimum wage. For purposes
of overtime calculations, treat the service charges as supplemental
compensation, similar to bonuses or commissions. See “Nonexempt Employees Paid
on a Commission Basis – Common Overtime Mistakes” in the April 2012 BIZWatch,
or access this link: http://bizkeys.com/pages/2012/04/16/nonexempt-employees-paid-on-a-commission-basis-common-overtime-mistakes/.

DOL regulations related to tipped employees were modified April 5, 2011. https://www.federalregister.gov/articles/2011/04/05/2011-6749/updating-regulations-issued-under-the-fair-labor-standards-act#h-23 includes the
preamble and regulatory changes.

Regulations concerning tipped employees (including April 5, 2011 modifications): http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=48d6ee3b99d3b3a97b1bf189e1757786&rgn=div5&view=text&node=29:3.1.1.1.21&idno=29#29:3.1.1.1.21.4.

For fact sheets regarding tipped employees, see http://www.dol.gov/whd/regs/compliance/whdfs15.htm and http://www.dol.gov/whd/regs/compliance/whdfs15a.htm.

The Wage & Hour Self-Audit Guide, in the Self Auditing area of www.BizKeys.com, contains a minimum wage section that briefly discusses tips, and
an overtime compensation section that covers the overtime basics.

 

 

NLRB STRIKES DOWN OVERBROAD RULES, NIXES SOCIAL MEDIA POLICY

September 19th, 2012

A recent decision from the NLRB illustrates the importance of carefully reviewing work rules and policies to assure that the mere maintenance of a rule does not end
up being an unfair labor practice.  In Costco Wholesale Corporation, 358 NLRB No. 106 (2012), the NLRB reviewed several rules and policies in Costco’s employee handbook.  It found that Costco violated Section 8(a)(1) of the National Labor Relations Act (the “Act”) by maintaining rules stating that:

(a) “unauthorized posting, distribution, removal or alteration of any material on Company property” is prohibited;

(b) employees are prohibited from discussing “private matters of members and other employees . . . includ[ing] topics such as, but not limited to,

sick calls, leaves of absence, FMLA call-outs, ADA accommodations, workers’ compensation injuries, personal health information, etc.”;

(c) “[s]ensitive information such as membership, payroll, confidential financial, credit card numbers, social security number or employee personal

health information may not be shared, transmitted, or stored for personal or public use without prior management approval”; and

(d) employees are prohibited from sharing “confidential” information such as employees’ names, addresses, telephone numbers, and email

addresses.

It was held that these rules were overbroad since they directly restricted the employees from engaging in concerted activities
guaranteed by Section 7 of the Act.

In its first decision on a social media policy case, the NLRB found that Costco’s social media policy violated Section 8(a)(1).   The policy
stated: Any communication transmitted, stored or displayed electronically must comply with the policies outlined in the Costco Employee Agreement. Employees should be aware that statements posted electronically (such as [to]online message boards or discussion groups) that damage the Company, defame any individual or damage any person’s reputation, or violate the policies outlined in the Costco Employee  Agreement, may be subject to discipline, up to and including discharge.

While the rule does not explicitly reference Section 7 activity, the NLRB felt that, by its terms, the broad prohibition against making statements that“damage the Company, defame any individual or damage any person’s reputation” clearly encompassed concerted communications protesting Costco’s treatment of its employees. The NLRB noted that there is nothing in the rule that even arguably suggests that protected communications are excluded from the broad parameters of the rule. In these circumstances, employees could reasonably conclude that the rule requires them to refrain from engaging in certain protected communications (i.e., those that are critical of the Company or
its agents).  Since Costco’s rule did not present accompanying language that would tend to restrict its application, employees could reasonably assume that it pertains to — among other things — certain protected concerted activities, such as communications that are critical of the Costco’s treatment of its employees. The  maintenance of the rule
thus had a reasonable tendency to inhibit employees’ protected activity and, as such, violated Section 8(a)(1).

The NLRB did
find, however, that a rule requiring employees to use “appropriate business decorum” in communicating with others did not violate the Act.  Nor did Costco violate the Act by maintaining a rule prohibiting employees from “[l]eaving Company premises during working shift without permission of management.”
This particular rule was lawful, because it did not prohibit employees from “walking off” the job without permission, a rule that has been ruled
unlawful because “walking off” is too similar to the term “walk out”, a synonym for a strike.

This case clearly shows that the current NLRB accepts many of the Acting General Counsel’s recently published legal theories relating to how employers’ social media policies that are broadly written inhibit employees in the exercise of their rights.   It also shows that the NLRB is willing to interpret work rules in a way that will protect employees who complain to others, either inside or outside the workplace, about working conditions.  One ray of hope is the NLRB’s references to the lack of a disclaimer in the social media policy to let employees know that it did not prohibit protected activities.  The Acting General Counsel has asserted in litigation that such a disclaimer is ineffective to save an overly broad rule.  Perhaps the NLRB will give effect to a disclaimer that the rules or policies will not be interpreted or applied in such a manner as to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights.