The National Labor Relations Board (NLRB) has received significant attention in recent months for its aggressive efforts to purportedly protect employees’ rights by issuing controversial decisions and guidance regarding policies routinely included in employee handbooks. The NLRB’s recent rulings and guidance memorandum have cast doubt on the validity of such standard employment policies. These developments illustrate the importance of routinely reviewing and updating handbook policies to remain compliant in the ever-changing employment landscape.
Most notably, the NLRB recently has attacked employers’ handbook policies defining at-will employment, regulating the use of social media and mandating confidentiality during workplace investigations, for being violative of the National Labor Relations Act (NLRA), on the basis that they contain overly broad language or prohibitions that restrict or chill employees’ rights.
Notably, the NLRA applies to union-represented and unrepresented employees alike, by protecting all covered employees’ rights to engage in concerted activity. In addition to protecting employees’ rights to engage in union-related activities—such as collective bargaining, or forming or joining a union—the NLRA specifically gives employees the right to engage in other concerted activity for their mutual aid or protection. In other words, the law gives employees the right to act together—to engage in “protected concerted activity”—in order to address their pay and working conditions or job-related problems, even if they do not belong to a union.
The definition of protected concerted activity also includes a single employee acting on the authority or on behalf of other employees to bring group complaints to the employer’s attention, or trying to induce or prepare for group action. Thus, if employees post work-related grievances on Facebook, or use other social media sites (including message boards or discussion groups) to discuss work-related issues such as pay or safety concerns, that activity likely is protected by law, even though it may violate the broad terms of an employer’s social media or confidentiality policy. For example, in one recent case, a group of employees posted a YouTube video to voice their concerns about safety in the workplace and lost their jobs within 10 days, accompanied by threats warning them not to talk about working conditions with outsiders. The NLRB took the position that the video was protected activity because employees had complained about job safety, notwithstanding that their employer deemed the public airing of their concerns objectionable. The case settled on the second day of hearing testimony.
In reviewing and preparing policies, employers should follow a few principles to ensure they will not be deemed to prohibit lawful activity. A work policy will violate the NLRA if it explicitly restricts, or employees would reasonably understand it to prohibit, employees’ right to engage in protected concerted activity. Accordingly, any vague or ambiguous language, or overly broad prohibitions within a policy that could be interpreted to restrict employees’ rights should be removed, more narrowly tailored or clarified. For instance, with social media policies, employers should remove provisions that discourage discussion about the terms and conditions of their employment, or which generally prohibit employees from posting critical comments about their employer.
Similarly, companies should remove blanket confidentiality policies regarding workplace investigations and evaluate on a case-by-case basis whether an investigation warrants complete confidentiality. The same applies for at-will employment policies, where employers should remove language that employees may interpret as preventing them from engaging in protected activity, such as language that restricts an employee from changing his at-will employment status. Policies should also be specific and include examples or definitions, where possible, to provide context, alert employees of what conduct is prohibited and illustrate the employer’s legitimate business reason for the policies. Employees, moreover, should be required to regularly review employment policies and should receive appropriate training regarding such policies.
In addition to violating the NLRA, unlawfully broad policies can have other unintended negative consequences for employees. For example, in a recent decision, the NLRB held that the results of a decertification election had to be set aside because of several objectionable policies in the employee handbook, even though the policies were never enforced, and there was no evidence that employees were prevented from engaging in protected activity.
The NLRB is cracking down on employers’ policies that could interfere with the rights of employees to engage in protected concerted activity. The organization’s most recent guidance and interpretations should serve as a wake-up call to all employers, regardless of whether their workers have union representation, to be proactive and scrutinize their policies to ensure compliance with the NLRA. Given the vagueness of the NLRB’s new standard, it may be extremely difficult to assure that policies are lawful. But companies must at least make an effort to eliminate the obviously violative provisions and to reduce the risks regarding other provisions. Although it remains to be seen what future developments will impact the NLRB’s decisions, one thing is clear: Regular review and revisions of an employer’s policies and employee handbook are necessary to remain in compliance with the law. Employers are well-advised to consult with counsel to obtain guidance on how to update and enforce such policies.
