With a confirmed five member Board and a confirmed General Counsel, employers need to be aware that the oversight and review of personnel policies and employee handbooks which began under the prior Board will continue in earnest. At the ABA Labor and Employment Section's annual CLE conference in New Orleans, I attended several sessions where the reach of the NLRA was present but not discussed. In a session dealing with the legal developments affecting LGBT employees, one speaker addressed actions that employers need to take. Specifically, employers should have a policy emphasizing that all employees are to be treated with dignity and respect. The point is legitimate but is the policy valid under the NLRA? There was no language indicating that the policy was directed to comply with non discrimination issues. It was a general civility policy which the Board has found to "chill" employee Section 7 rights because it is overly broad and does not contain examples of the conduct to which it is directed. I attended a session on privacy of employee information under the ADA, HIPAA, and GINA. A hypothetical was used of a company acquiring health information about an employee's son from an employee's Facebook page. In the hypothetical, the company had a policy where all employees had to provide Facebook access to HR which would periodically check employee accounts. Would this policy be legal under the NLRA? It would appear to be intrusive surveillance which would chill employees in exercising Section 7 rights on their Facebook pages. Once the new Board begins to issue decisions, I expect that the prior Board's decisions will be followed with respect to the issue of overly broad employer policies which "chill" employee rights or would be viewed as doing so by the "reasonable employee." Employers who have not reviewed their handbooks and policies through the filter of the concerted, protected activity may be in for a surprise and need to review their policies.
For additional Labor and Employment law insights from John Holmquist, visit the Michigan Employment Law Connection.
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