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HR Alert: NLRB and Employee Handbooks

By Philip Dickey, MPH, PHR | November 12, 2014

On Thursday, June 26, 2014, hundreds of National Labor Relations Board (NLRB) decisions were thrown into legal limbo by a Supreme Court ruling stating that President Obama overstepped his authority by naming three members to the panel while the Senate was on break. This may have falsely lead some employers to feel they could ignore reviewing and editing their employee handbook policies to comply with the NLRB case rulings.

The Washington Post reported that labor lawyers and others who regularly deal with the NLRB said little is likely to change because those decisions are almost certain to be reaffirmed by the current board.

“Obviously dozens, if not hundreds of cases, will be invalidated,” said a lawyer who represented employers in labor litigation. “But I would anticipate the new board reaching the same conclusions that the previous board did.”

The Board regained a quorum on August 5, 2013. On July 18, 2014, the NLRB, as expected, unanimously ratified all administrative, personnel, and procurement matters taken by the Board from January 4, 2012, to August 5, 2013. The Board has now ratified these actions to remove any question concerning the validity of actions undertaken during this time.

Consequently, the prudent response by employers was and still is to continue to recognize these NLRB rulings in their personnel policies.

The NLRB Wants Employers To Clean Up Their Employee Handbooks

The National Labor Relations Board (NLRB) has been busy finding many standard employment policies unlawful. In the process, it is forcing companies to rethink workplace policies and how those policies should be described in employment handbooks.

The NLRB has developed a two-part test to determine whether a workplace policy unlawfully discourages employees from engaging in what is known as “concerted activities.” First, the NLRB analyzes whether the rule expressly prohibits concerted activity (defined below). If the rule does not contain any explicit prohibition, then the NLRB analyzes whether any of the following conditions are present: (1) employees would reasonably construe the language to prohibit concerted activity; (2) the rule was promulgated in response to union activity; (3) the rule has been applied to restrict the exercise of concerted activity rights.

Concerted Activity Is Protected

“Protected Concerted Activity” is a legal term used in labor policy to define employee protection against employer retaliation in the United States. It is a legal principle under the subject of the freedom of association. It defines the activities workers may participate in without fear of employer retaliation.

The centerpiece of federal labor law is the National Labor Relations Act (Act), passed in 1935 as part of the Great Depression’s New Deal. Expressly designed to promote collective bargaining, Section 7 of the Act protects employees who engage in union activities. Section 7, however, is not limited to union activities. It broadly protects employees who engage in “other concerted activities for the purpose of … mutual aid or protection,” whether or not a union is involved. Collectively, these rights are referred to as “Section 7 rights.” One employee or a group of employees banding together to speak up about the terms and conditions of their workplace can be enough to trigger NLRB’s involvement. The Act protects employee complaints about salary, benefits, unsafe conditions, harassment, discrimination, retaliation, and abusive supervisors. An employer that interferes with the exercise of these rights commits an unfair labor practice and can be ordered to stop interfering, compensate injured employees for any loss of wages or benefits, and post a notice that assures its employees it will respect their rights under the Act.

The NLRB has advanced a troubling approach for protecting Section 7 rights of concerted activity. The agency has taken the position that employer policies that have a “chilling effect” on concerted activity are unlawful. You hear the term “chilling effect” in some constitutional court cases where a vague law or rule inhibits or prevents an individual from exercising free speech rights. In a similar manner, the NLRB is targeting vague and overly broad language in employee handbooks or employment policies that may make workers think twice about, or altogether prevent, participation in concerted activity. This approach started with social media policies but has now been applied to confidentiality policies, media policies, employment-at-will statements, and even a non-disclosure requirement during workplace investigations.

Employers can cautiously assume that individual “griping” will not invoke the protection of the NLRB. An individual gripe is a remark made by an employee who does not intend to induce coworkers into taking action regarding the terms and conditions of employment but is made solely on his or her own behalf.

Troubling NLRB positions

The NLRB has found examples of unacceptable policies in employer handbooks addressing the following topics.

  • Social media policies
    • Of specific concern to the NLRB is any policy that prohibits employees from engaging in concerted activity via social media (i.e., online discussions about wages, hours, or terms and conditions of employment).
    • Any policy prohibiting employees from disparaging supervisors or coworkers online may pose a problem.
    • A policy stating that social media posts must be completely accurate and not misleading and that they do not reveal non-public company information on any public site may be troublesome.
  • Confidential information
    • Instructions that employees not “release confidential guest, team member, or company information” (not PHI) when blogging or using online social networking sites such as Facebook and YouTube could reasonably be interpreted as prohibiting employees from discussing their own and fellow employees’ conditions of employment. Because the NLRB has long recognized the right of employees to discuss their wages and conditions of employment with third parties and each other, the general counsel concluded the policy was unlawful.
    • A provision instructing employees not to have discussions about confidential information (not PHI) “in the break room, at home, or in open areas or public places” was found unlawful because it could reasonably be construed as prohibiting employees from discussing their terms and conditions of employment virtually anywhere.
    • A policy was considered problematic if it stated to “never share confidential information (not PHI) with another co-worker unless they have a need to know the information to do their job.” If you need to share confidential information with someone outside the company, confirm there is proper authorization to do so. If you are unsure, talk to your supervisor.
    • It found that discussing legal matters, including pending litigation or disputes, was too broad and general and thus illegal.
  • Worker expression policies
    • The NLRB has also targeted a range of policies that it views as limiting worker expression in a way that “chills” concerted activity. Most surprising was its move to strike down an employer’s workplace civility policy. Unbelievably, the use of curse words or expletives alone are not likely to rise to a level where the NLRB would disallow it.
    • It found the policy statement “Offensive, demeaning, abusive, or inappropriate remarks are as out of place online as they are offline” to be unacceptable.
    • The Board concluded that disciplinary action for “insubordination or other disrespectful conduct” and “inappropriate conversation” might be too broad.
    • It decided general rules prohibiting the solicitation of co-workers while on company property are overly broad because they restrict employees on paid company breaks.
    • Requiring that employees obtain company approval or bring work concerns to the company before publishing any comments about the company is an unlawfully broad restriction, according to the NLRB.
  • Investigation policies
    • Many employers include a confidentiality provision in their investigation policy stating that employees and managers must maintain the confidentiality of any workplace investigation. Generally, that includes an admonition to employee witnesses not to share the nature of their discussions with anyone other than HR. The NLRB does not approve of such policies and has held that an employer’s interest in maintaining the integrity of its investigation is not sufficient to outweigh any limits on concerted activity. Instead, each case must be considered on its own merits. It is unclear whether an employer’s interest in preventing retaliation is sufficient to justify a request for confidentiality.
  • At-will employment policies
    • Most troubling of all is the NLRB’s stance on employment-at-will policies. Employers are often advised to include at-will employment statements in their employee handbooks indicating that employment is “at will” and may be terminated by either party for any lawful reason. Some policies also include a statement that the at-will nature of the employment relationship cannot be altered. That is an issue for the NLRB.

Contending With The NLRB

The trouble for employers is that employment policies are often written generally. It is doubtful every single instance of what is or is not okay could be captured in a policy. Therefore, the policies are written as general guidelines that provide the boundaries for acceptable professional behavior. However, unless employers want to risk an NLRB complaint, they should review their policies and determine whether rules once thought to be rather straightforward can now be viewed as having a “chilling effect on concerted activity.” Merely maintaining an unlawful policy is a violation even if it has never been applied to restrict any concerted activity.

If an employee could possibly view a rule as prohibiting the right to speak up about workplace conditions with other employees, with supervisors, with the media, or with government agencies and investigators, the policy needs to be amended and space carved out to clarify that concerted activity rights will not be restricted.

For example, the NLRB has argued that unionizing activity can in fact alter the at-will nature of the employment relationship. An assertion to the contrary might therefore “chill” organizing activity by suggesting that efforts to unionize are futile. Although that view is worrisome, complying with it is an easy fix. As long as your at-will policy provides that the nature of the employment relationship may be altered by an authorized member of management (e.g., company president), preferably in a signed written document, it should pass.

When drafting rules of conduct addressing such things as confidentiality and civility, be careful not to use broad, general prohibitions. Be specific and list examples of unacceptable behavior so that a single word will not be read in isolation. The value of this approach is shown in an NLRB decision where an employer’s handbook contained the following wording: “Employees will not engage in conduct or activity that may raise questions as to the company’s honesty, impartiality, reputation or otherwise cause embarrassment to the company.” The NLRB would have likely found this statement unlawful if it were not for the policy specifically noting improper actions such as bribery, antitrust violations, insider trading, etc., leading the NLRB to conclude that employees would not reasonably construe the language as restricting concerted activity.

When developing an internal investigation policy, stay away from overly broad (blanket) requests for employees not to discuss the investigations so as to protect the integrity of such investigations. This again can be handled by stating that such a request is expected of employees in circumstances where there is legitimate concern over witness protection, destruction of evidence, fabrication of testimony or cover-up.

Advice On Handbook Disclaimers

The NLRB has taken the position that handbooks stating that policies would be administered in compliance with applicable laws and regulations (including Section 7 of the National Labor Relations Act) was insufficient to cure ambiguities in overly broad policies. The bottom line is do not count on a policy dodging an NLRB complaint by the use of a simple handbook or policy disclaimer.

Conclusion

The NLRB has issued a series of decisions that strike down reasonable employer policies that are common in most employee handbooks. Furthermore, its decisions appear to be based on speculation about what a reasonable employee might think. This is most likely only the beginning of a new era of NLRB enforcement activities against non-union employers. In light of these recent NLRB decisions and others, employers would be wise to review their personnel policies with a careful eye toward whether policy language might be seen as limiting employees’ discussion of matters affecting their employment.

If you have questions, please contact us via email or call 800-635-4040.