It has been almost three years since the first “Facebook firing” case hit the media and many employees were introduced for the first time to the National Labor Relations Board (NLRB), the National Labor Relations Act (NLRA) and the concept of protected concerted activity. A couple of years ago, most union-free employers paid little, if any, attention to decisions issued by the NLRB, believing for the most part that because their employees were not represented by a union, what happened at the board did not affect them. As more and more employers are learning, sometimes only as a result of an unfair labor practice charge, regardless of whether employees are unionized or not, Section 7 of the NLRA can have a significant impact on the way all employers operate, often on a daily basis.
With private-sector unionization at a 70-year low, the NLRB’s focus has shifted from what most would call its traditional functions (running elections and overseeing collective bargaining), to putting the spotlight on protected concerted activity. It seems that way because of the board’s recent initiatives to educate non-represented workers about their Section 7 rights. The board’s initiatives appear to be working, as more and more employees are becoming savvy about their rights, in their individual capacity, under the act.
Part and parcel of this new initiative is the board’s increased scrutiny of employee handbooks and policies, both in union and non-union settings. Section 7 of the NLRA gives all employees, union or non-union, the right to engage in protected concerted activity, which was once described as the formation of or assistance to a group, or action as a representative on behalf of a group. More simply put, employees have the right to act for the benefit or on behalf of co-workers to improve or change working conditions. Employees better understand what this means and how it applies to their job, including the significance of policies to which they are expected to adhere.
There are few circumstances where it is not advisable for employers to maintain an employee handbook or some compilation of policies in the work environment. These documents serve important purposes by setting expectations for employees and management. But there is an increasing risk that even what would be considered to be the most run of the mill policies could be found to be overly interfering with Section 7 rights, regardless of whether a workforce is unionized or whether it is union activity. When analyzing employee handbooks, rules and policies, the NLRB is taking a very restrictive view. Employers should not be surprised to have complaints issued on what may seem to be innocuous provisions, even if such policies have never been enforced or used for disciplinary purposes.
The board uses a two-step analysis for determining the lawfulness of a rule. The first step is relatively easy for an employer to self-evaluate whether a policy may found unlawful. If the rule explicitly restricts protected activity, the rule is unlawful. For example, a rule expressly prohibiting employees from discussing their wages with co-workers would be unlawful. Most employers have evolved past such draconian rules, however, where a handbook has not been modified in recent years or policies are passed through acquisitions or mergers, such relics may still exist. The second step is much more subjective. If the rule does not explicitly restrict activity protected by Section 7, the board will find the policy violates the NLRA if it meets one of the following conditions:
1. The rule has been applied to restrict the exercise of Section 7 rights
2. The rule was promulgated in response to union activity
3. Employees would reasonably construe the language as prohibiting Section 7 activity
Often it is the third factor that is most problematic.
Policies that seem to be garnering the most attention include rules relating to social media, confidentiality (generally and related to internal investigations), conflicts of interest, computer use, non-disparagement, speaking to the media, photographs and recordings, use of trademarks and logos, employee off-duty access to property, leaving work or work stations without permission and even at-will employment disclaimers.
In light of recent decisions and increased scrutiny, employers should regularly monitor board decisions and general counsel memoranda to stay ahead of the often-shifting standards that may be applied to policies. Be vigilant in maintaining up-to-date rules and practices. Regularly review rules against the current status of NLRB law, confirming there are no outdated policies in handbooks that explicitly restrict protected concerted activity and tightening up vague, ambiguous and unused provisions, which have the potential to be construed as restricting Section 7 rights.