EXTINGUISHING THE COMMON MISCONCEPTION THAT THE NLRA/NLRB ONLY ADDRESS UNIONIZATION AND COLLECTIVE BARGAINING ISSUES
In 2012, the NLRB’s General Counsel’s office has been keeping employers with non-unionized workforces on their toes by expanding the reach of Section 7 of the National Labor Relations Act (“NLRA”) to non-unionized workers to address issues ranging from at-will agreements to social media policies to employer property rights and employee access. As a result of this infringement into the non-unionized workforce, we are seeing an increase in challenges to employer handbook policies under the NLRA. The first step for employers to protect themselves is to ensure that their policies are complaint with the recent rulings under the NLRA.
The “unlawful” workplace policies addressed by the NLRB’s General Counsel’s office in 2012 include:
1. A policy addressing workplace confidentiality and the sharing of confidential information that does not expressly identify categories of non-NLRA protected confidential information. This ruling is particularly significant and troubling in the context of harassment investigations because it is inconsistent with an employer’s obligation under the Equal Employment Opportunity Commission’s enforcement guidance to maintain confidences during investigations;
2. A social media policy that addresses employees’ personal on-line posts and warns that posts must be “completely accurate and not misleading.” So far this year, the General Counsel’s office has issued three reports/rulings/advisory memos addressing employers’ social media policies, and in each has identified various employer policies that are allegedly overbroad under the NLRA. The NLRB has issued a model social media policy, which can be accessed at https://www.nlrb.gov/publications/policies;
3. An employee professional conduct policy that requires employees to communicate in a “professional tone” without making “objectionable or inflammatory comments;”
4. A restriction on an employee’s ability to communicate with the media;
5. A requirement that an employee enter into an arbitration agreement that includes class action waivers. The NLRB’s recent ruling against such agreements is inconsistent with numerous state and federal court decisions, including the U.S. Supreme Court’s pro-arbitration decision AT&T Mobility v. Concepcion;
6. A policy to limit employees’ off-duty access to working areas if that employer allows employees to access working areas when they are off- duty in certain circumstances such as attending a work function/party or picking up a check. Employers should ensure that any off-duty access policy is uniformly and non-discriminatorily enforced; and,
7. A handbook acknowledgement providing: “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.” The NLRB successfully litigated that asking employees to agree that their at-will status cannot change violates their rights to try to change it through unionization.
Each of these policies is ripe for attack by a union seeking to organize a non-union workforce.
In the wake of these recent rulings and opinions, employers should review their employment policies with experienced labor counsel to ensure that their policies are up to date and in compliance with the recent more restrictive view of the NLRB. At a minimum, employers should be sure that none of their policies “explicitly restrict Section 7 protected activities.” If a workplace policy does not explicitly prohibit Section 7 activities, then, under the NLRA, employers should look to see if: “(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.” Employers should also seek the advice of experienced labor counsel before taking any adverse employment action against an employee for violating any of the above-discussed handbook policies that the NLRB has been targeting.