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The National Labor Relations Board (NLRB) has employee rules in its sights. In the last year or more, the board has issued several decisions regarding whether rules governing social media, at-will employment, employee communications in and out of the office, confidentiality, workers’ access to company property and other conduct constitute unfair labor practices. In some instances, the board found policies unlawful under the National Labor Relations Act (NLRA). The board ruled other policies were lawful, sometimes contrary to previous rulings on comparative language.
Section 7 of the NLRA gives union and non-union employees the right to: “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. . . .” Under Section 8, it is an “unfair labor practice” for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.”
Increasingly, employees cite Section 7 to challenge company policies, arguing the policies hinder their ability to engage in concerted activities to improve their wages and working conditions. Consequently, NLRB is targeting overly broad language—often historically accepted language—that employees might reasonably construe as impinging on their Section 7 rights.
Companies looking to avoid government attention should carefully consider their policy language. While a handbook violation under the NLRA does not result in a fine, the NLRB has overturned discipline and termination decisions because of invalid policy language. Additionally, failed union activities may get new life from an NLRB decision.
Recent Cases—Example #1
In April, a three-member panel of the board reversed portions of a 2011 administrative law judge (ALJ) decision.1 The NLRB panel:
FOA Policy Provisions
Of additional note, the NLRB panel addressed the employer’s contention that its freedom of association (FOA) policy applied to all handbook provisions, which precluded a finding that its handbook infringed on Section 7 rights. While the panel agreed that an FOA policy may, in certain circumstances, clarify the scope of an otherwise ambiguous and unlawful rule, the provision in this case “does little to ensure that employees would not read otherwise overbroad rules as restricting their Section 7 rights.” The panel noted that the FOA policy is too narrow because it focuses solely on union organizational rights.”
The panel said an effective “safe harbor” or “savings clause,” should:
Recent Cases—Example #2
The same week, the NLRB decided a hospital case2, in which it found unlawful three rules in the employer’s Values and Standards of Behavior Policy relating to teamwork and positive attitudes. The panel said the rules prohibit employees “from making statements to third parties protesting their terms and conditions of employment — activity that may not be ‘positive’ toward the [employer] but is clearly protected by Section 7.”
The rules at issue were:
The NLRB pointed out that the language was not lawful simply because employees helped draft it. “Employees might well endorse an unlawful rule, knowingly or not, but their consent or acquiescence cannot validate the rule.”
The NLRB held that the hospital had to rescind these policies. No employee claimed to have been wrongly disciplined due to the policies.
On the Horizon
The NLRB pursuit of unlawful handbook language shows no signs of abating. The board solicited briefs, due June 16, in Purple Communications, Inc., to discuss whether a policy prohibiting personal use of company electronic systems violates Section 8 and whether employees have a statutory right to use the company email system for Section 7 purposes. The board also asks that if it overturns its holding in Register Guard that allows employers to ban such communications, what standards of employee access and restrictions may an employer place on them?
Tips for Avoiding Scrutiny
Guided by binding NLRB decisions, companies should regularly review their handbook language. Companies should:
In the end, employers must carefully review their work rules language. Seeking counsel from an attorney who keeps abreast of the rapidly changing NLRB landscape is the best avenue for obtaining policies that achieve company goals and withstand scrutiny.
1 First Transit, Inc. and Amalgamated Transit Union Local #1433
2 Hills and Dales General Hospital and Danielle Corlis