Prepared by Ted Gentry
July 2012

There They Go Again:  NLRB Imperialism

The National Labor Relations Board has published a new webpage for employees which, according to the accompanying NLRB press release, “describes the rights of employees to act together for their mutual aid and protection, even if they are not in a union.” The NLRB’s Chairman stated in the press release, “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.” In other words, the NLRB is seeking to expand its reach into nonunionized workplaces.

Another similar move toward nonunion workplaces can be seen in signals that the NLRB may be targeting at-will disclaimers in employment policies and handbooks. In a recent speech, the NLRB’s Acting General Counsel indicated that blanket at-will disclaimers might violate the National Labor Relations Act if the disclaimers caused employees to reasonably believe that  the employer’s at-will policy would render futile employee attempts to collectively bargain and organize. We are not recommending material changes to the ubiquitous at-will disclaimers in policies and handbooks at this time (and there are good reasons to keep them under South Carolina law), but we will continue to monitor the NLRB’s movements in this area, and to keep you apprised of likely impacts.

New South Carolina Laws Take Effect

The latest session of the South Carolina General Assembly passed two employment-related laws.

First, South Carolina’s right-to-work law was enhanced. In South Carolina, a person’s right to work must not be denied because of membership or nonmembership in a labor union. The law also authorizes employers to post a notice entitled “Your Rights as a Worker in South Carolina,” which the Department of Labor, Licensing and Regulation will make available on its website.

Second, the General Assembly provided unemployment compensation relief to employers who terminate a worker for misconduct. The law disqualifies benefits (in part) to employees whose conduct evidences “willful and wanton disregard of an employer’s interests,” including deliberate violations or disregard of standards of behavior which the employer has the right to expect, or the intentional or substantial disregard of the employer’s interest or the employee’s duties and obligations.

Protect Your Trade Secrets and Confidential Information!

In a case in which we successfully represented a party who was dismissed from the action, the U.S. District Court for the District of South Carolina recently upheld a seven-figure jury verdict against a former employee who misappropriated customer-related trade secrets.  The court affirmed a finding that under South Carolina law, a trade secret may exist in a unique combination or compilation of information otherwise publicly available, including customer sales, cost, marketing information, and historical customer service information.  The Court sustained the jury verdict because the plaintiff was able to show that this information, taken collectively, was valuable to the relationship with specific customers.

Customer-related information and lists have received mixed treatment from the courts in trade secret litigation. While this case is helpful to employers who want to protect customer-related information from misappropriation, it also provides a good reminder that in order to prevail, employers must take specific, tangible, and material efforts to maintain the secrecy of this information. Practical ideas about how to take precautions against intentional or inadvertent disclosure of your company’s trade secrets can be found in one of our previous updates.

Wyche at Work on the Radio

Ted Gentry was a recent guest on ETV’s radio program, The South Carolina Business Review, discussing recent updates (first highlighted on Wyche at Work!) on social networking policies, unpaid internships, and hiring ex-offenders.

*****

If you have any questions about these or other workplace law topics, please contact Ted Gentry.

This update is provided by Wyche for educational and informational purposes only and is not intended and should not be construed as legal advice.