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Labor: Running a union-free workplace doesn’t make you safe from NLRB meddling

All employers should reevaluate their employee communication policies

Many employers with union-free workforces do not realize that the National Labor Relations Act (NLRA), which protects an employee’s ability to engage in union activities and certain other “concerted activities,” also applies to non-union workforces. This common misconception can, and eventually will, prove costly, especially if employers prohibit or limit certain communications by employees.

As most employers know by now, the National Labor Relations Board (NLRB) undertook a significant effort to regulate the social media world in December 2010. On August 18, 2011, the NLRB issued the first of three (to date) memoranda addressing the legality of numerous incidents of employee discipline based on violations of an employer’s social media or other similar policy. The NLRB published a second memorandum on Jan. 24, which provided similar guidance. Many of the cases addressed in these memoranda addressed workplace policies of union-free employers.

One common theme emerged from the cases discussed in the first and second memoranda: the NLRB’s focus on the “concerted” nature of the employee’s social media activity. To determine whether the NLRA will protect certain employee activity, employers should ask themselves the following:

  1. Is the activity engaged in with or on the authority of other employees and not solely by or on behalf of the individual employee?
  2. If individual activities, are they “logical outgrowths” of concerns expressed by employees collectively?
  3. Does the activity involve circumstances where individual employees seek to initiate, induce or prepare for group action?
  4. Does the activity involve circumstances where individual employees bring “truly group complaints” to management’s attention?

If any of these conditions apply, the NLRB will consider the activity to be protected by the NLRA.

In its latest memorandum addressing social media issues, released May 30, the NLRB expanded the scope of its attack to all workplace policies dealing with employee communications. The seven cases discussed in this memorandum addressed social media, electronic communications, non-disparagement, non-violence and confidentiality policies.

In this context, the NLRB reiterated the standard by which it judges the lawfulness of a social media policy under the NLRA: To be unlawful, a work rule does not need to expressly restrict Section 7 activities (e.g., “employees cannot form unions”). Recognizing that most employers have policies that make no mention of Section 7 rights or the NLRA at all, the NLRB pointed out that these policies may nevertheless violate the NLRA if:

  1. Employees would reasonably construe the rule or policy’s language to prohibit Section 7 activity
  2. The employer promulgated the rule or policy in response to union activity
  3. The employer applied the rule or policy to restrict the exercise of Section 7 rights

Unfortunately, the NLRB was less than clear in its recent memorandum as to what meets the “reasonably construe” standard. On one hand, the memorandum summarized cases in which the NLRB believed the average worker knows the NLRA fairly well.

For example, the NLRB found a policy instructing employees to not “pick fights” unlawful because, without further clarification, “employees would reasonably construe this rule to prohibit robust but protected discussions about working conditions or unionism.”

Likewise, a policy prohibiting unauthorized disclosure of “confidential information,” a term not defined in the policy, violates the NLRA because “employees would construe these provisions as prohibiting them from discussing information regarding their terms and conditions of employment.”  

On the other hand, the memorandum cited a case in which the NLRB determined a general “savings clause” that explicitly referenced the protection of Section 7 rights does not help save overbroad policies because the average worker cannot possibly know what the clause means. These clauses, according to the NLRB, fail to cure unlawful policies “because employees would not understand from this disclaimer that protected activities are in fact permitted.”

The takeaway from the NLRB’s recent foray into the social media world and the validity of confidentiality, non-violence and similar policies is simple. Employers, regardless of union presence in their workplace, should take notice. Every employer should re-evaluate, and potentially revise, any workplace policy that restricts an employee’s ability to communicate with others in broad terms. If nothing else, employers should review the social media policy that the NLRB attached to its May 2012 memorandum, which the NLRB believes fully complies with the NLRA.

Contributing Author

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Christine McLaughlin

Christine Liu McLaughlin is a shareholder in Godfrey & Kahn, S.C.'s Labor & Employment Law Practice Group in the Milwaukee office and is chair of the firm's...

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Contributing Author

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Rufino Gaytán

Rufino Gaytán is an associate in Godfrey & Kahn, S.C.'s Labor & Employment Law Practice Group in the Milwaukee office. Rufino assists private and public employers in addressing...

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