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Labor: Avoid trouble with the NLRB

Review company policies and tread lightly around union organization attempts

Most employers are aware that the National Labor Relations Board (the NLRB) enforces the National Labor Relations Act (the NLRA). Most employers also correctly assume that they have to deal with the NLRA if and when their employees try to organize or join a union.

Too many employers, however, forget that the NLRA, and thus the enforcement powers of the NLRB, reach non-unionized employers too. If a non-unionized employer interferes with a non-supervisory employee’s right to engage in “protected concerted activity,” the employer risks an NLRB charge and investigation. Protected concerted activity involves employees acting with or on behalf of other employees for their “mutual aid and protection,” including bringing complaints to the attention of management or actions to improve terms and conditions of employment.

Social media policies are another tricky area. The NLRB has increasingly taken the position that social media policies can be read to curtail employees’ rights to discuss the “terms and conditions of employment,” a right protected under the NLRA. Social media policies have been found to be unlawful if they broadly prohibit “disparaging” comments about the employer, supervisors, employees, terms and conditions of employment, or generically prohibit “unprofessional” communications, disclosure of “confidential, sensitive or nonpublic information,” or “disrespectful conduct.”

To avoid an issue with the NLRB, make sure the policy is sufficiently detailed to clearly articulate its goal and to identify the type of conduct that is prohibited. Don’t use terms like “defamatory,” “derogatory,” or “inappropriate” without providing specific examples of conduct clearly not protected by the NLRA, such as “vulgar, obscene, threatening, intimidating, [or] harassing” comments about the company, coworkers or supervisors, or comments that would violate the employer’s antidiscrimination or anti-harassment policies.

Contributing Author

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Karin McGinnis

Karin McGinnis is a member in Moore & Van Allen’s Employment & Labor group. She concentrates her practice on employment law, handling a broad range of...

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Contributing Author

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Benjamin Fryer

Benjamin Fryer's practice focuses on general litigation and employment law. Mr. Fryer has experience in a broad range of employment and labor matters, including state...

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