The NLRB: Digging to Remain Relevant

By Renee Mielnicki, Esq.

By now, most of us have probably heard of the National Labor Relations Board (NLRB). The NLRB is federal agency charged with enforcing the National Labor Relations Act (NLRA). The NLRA is a federal labor law that protects the rights of both union and non-union employees who engage in “protected concerted activity.” Simply put, the NLRA, which applies to almost all private employers, safeguards employees who act together to discuss and attempt to improve their working conditions, such as their pay, hours, discipline issues, etc. Under this law, employees have the right to make work-related complaints about their working conditions, including to their supervisor. Any action taken by an employer to prohibit employees from engaging in these protected activities is illegal.

diggingThe NLRA’s application to non-union employees is nothing new. However, NLRB decisions in the last five years pertaining to non-union employees are not only more frequent, but continue to increase employee rights under the NLRA. The following is a summary of the most notable NLRA issues of which all employers and Human Resource Managers should be aware.

Social Media: In today’s technological savvy world, everyone has a smart phone or iPad. A majority of us are Twittering, Facebooking and Instagramming on a regular basis. For whatever reason, we cannot help ourselves with our addiction to instantaneous and constant social connection. At least some employers have either written policies attempting to regulate what their employees say in these forums or have disciplined an employee over social media postings. Whether you attempt to regulate or discipline employee behavior with or without a social media policy in place, be aware that social media activity can be protected under the NLRA if it seeks to engage other co-workers and is related to the conditions of employment. Social Media policies should be examined to make sure that they do not restrict or attempt to chill NLRA rights. A best practice is to avoid broad language that restricts posts that “damage the company’s reputation” or “violate company policies” since such language could be interpreted to include co-workers seeking a discussion about the conditions of employment. Instead, these policies should seek to prevent unlawful, harassing, malicious, or abusive posts and language. For employers that do not have a social media policy, always be mindful of these NLRA rights before implementing discipline for social media posts.

Confidentiality Provisions: Many employers have handbook policies seeking to prohibit employees from disclosing matters that they deem confidential. Policies that ban discussions about wages and direct witnesses to a Human Resources investigation not to discuss the investigation have been struck down by the Board. When drafting these types of policies, employers must have a legitimate business reason for seeking confidentiality.

Civility Standards and Courtesy Rules: Rules which discipline for discourteous or inappropriate attitude toward customers or encourage employees to be polite and courteous to each other as well as customers will be struck down as well. The Board views this type of language to include disrespectful conduct when complaining about working conditions to co-workers and supervisors. More appropriate language for these types of policies would be that which disciplines for the use of profane, abusive, vicious or malicious language or conduct.

Employment at-will statements: For those of you with non-unionized workforces, you are all too familiar with employment at-will statements in your handbooks. However, these statements and any acknowledgment sign offs will be invalid if they contain statements like, “the at-will status can only be changed by the president.” At-will statements such as these will be held to violate the NLRA because they suggest employees cannot unionize. The take away? Always refrain from prohibiting employees from attempting to change their at-will status or attempting to get them to agree that it cannot be changed.

Use of Company Email: Most employers have electronic policies restricting use of company owned systems for business purposes only. Seems legitimate, right? Well, believe it or not the NLRB is actually entertaining the idea that prohibiting personal use of company email systems is illegal under the NLRA. If you’re wondering what possible rational there could be for such a rule, in a way, it may make sense in light of our technological advancements. The argument is that email is the present day water cooler and, in many ways, is replacing face to face talk in break rooms and other traditional gathering areas. Since employees have a right to engage in concerted activity at work, they have the right to do it through email. While this is not the law yet, many legal experts are predicting that it soon will be given the Board’s continuing expansion of non-union employee rights under the NLRA.

No-Gossip Policies: These policies and their implications under the NLRA were addressed in one of our previous posts. For information on these types of policies, please see Balancing Talk around the Water Cooler with the NLRA.

So what should you take away after reading this article? Well, here it is in a nutshell. The NLRB is really digging to remain relevant in the context of labor law and it will continue to expand and exert its authority in the workplace. Always be mindful of an employee’s right to discuss their wages and other conditions of employment with co-workers before you decide to discipline. In addition, when adopting written policies, be very specific. Never use broad or vague language that can be seen to include these protected activities or it will be struck down.

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