The ever-expanding reach of the NLRB and why non-union employers should care (Part 2)

Specific areas in which employers’ handbooks are under scrutiny include social media, confidentiality and employee behavior policies

As discussed in Part 1 of this series, non-union employers have historically cared very little about the National Labor Relations Act (NLRA) or the National Labor Relations Board (NLRB), as those companies viewed them as issues for employers with unions or threats of unions. And, as previously discussed, those times have dramatically changed as a result of the Board’s expansive activities aimed at both union and non-union employers with the goal of increasing the unions’ footprint.

In addition to the various tactics and policies implemented by the NLRB as previously discussed in Part 1, the Board declared it would aggressively scrutinize employers’ handbooks and policies for language that could deter employees from exercising their right to engage in “protected concerted activity” under Section 7 of the NLRA. This pronouncement has come to fruition in several different decisions by the Board over the past year. As a result, non-union employers (and union employers) should carefully review their policies and handbooks to minimize an attack by the Board. Specific areas in which employers’ handbooks are under scrutiny include social media, confidentiality and employee behavior policies.

Social media and confidentiality policies

One of the most prominent areas in which the NLRB has actively challenged employers relates to social media and confidentiality policies. Most companies want to have social media policies so that employees understand the parameters of what is appropriate and not appropriate to post on social media, including refraining from posting confidential business information. Based on the recent decisions, the Board dislikes any policy that might restrict or infringe upon an employee’s Section 7 rights under the NLRA, and it appears the scrutiny of these policies will not go away.

For example, in Triple Play Sports Bar and Grille, the employer had an “Internet/Blogging” policy which discouraged online communications that involved “confidential or proprietary information about the Company, or . . . inappropriate discussions about the company, management, and/or co-workers.” The policy also contained language that indicated it had “no force or effect” in the event that such policy was contrary to state or federal law. The employer terminated two employees for violating this policy after engaging in a Facebook discussion about the employer’s failure to properly withhold state income taxes from their wages. The employer defended the termination because the employees’ comments involved profane language and heavy criticism of one of the owners, and such conduct was contrary to the company’s “Internet/Blogging” policy.

The Board disagreed and, instead, held that the employees engaged in protected activity because the discussion was to “seek and provide mutual support looking toward group action to encourage the employer to address problems in terms and conditions of employment, not to disparage its product or services or undermine its reputation.” The Board went on to attack the company’s “Internet/Blogging” policy as running afoul to Section 7 of the NLRA because the employees could interpret the policy as “proscribing any discussions about their terms or conditions of employment . . . deemed ‘inappropriate’” by the employer.

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Employee behavior and conduct policies

In line with the scrutiny of social media and confidentiality policies, the Board similarly will challenge employers’ policies regarding employee behavior and conduct if such policies somehow limit or restrain an employee’s ability to engage in concerted, protected activity. Usually, an employee behavior or conduct policy will outline conduct that is not permitted in the workplace and/or require appropriate, respectful behavior toward co-workers, customers, and others. For example, an employer may have a policy that prohibits an employee from being rude or discourteous to others or from engaging in gossip. According to the Board, that policy arguably could restrict an employee’s rights under the NLRA and, therefore, is impermissible.

In Hill and Dales General Hospital, the employer had a “Values and Standards of Behavior” policy. Among other things, the policy required employees to “not make negative comments about [other employees],” to represent the organization “in the community in a positive and professional manner in every opportunity,” and to “not engage in or listen to negativity or gossip.” The Board found these requirements in the policy to be unlawful because the employees could view the policies as “proscribing them from engaging in any public activity or making any public statements (i.e., ‘in the community’) that are not perceived to be ‘positive’” about the hospital. The NLRB reasoned that these requirements could stop employees “from making statements to third parties protesting their terms and conditions of employment – activity that may not be ‘positive’ towards the [employer] but is clearly protected by Section 7.”

What to do?

Union and non-union employers should carefully review policies and practices to minimize NLRB scrutiny and challenges. In drafting policies, employers will want to avoid using language that is overly broad and could be perceived as infringing upon an employee’s Section 7 rights.

For example, avoid using language as prohibiting “negativity” or “gossiping” or requiring “positive behavior in the community.” Also, refrain from having a social media policy that declares the discussion about wages or the workplace as an inappropriate disclosure of confidential information. All of that language will draw the ire of the Board as being unlawful. Instead, make sure the policies have a “savings clause” that specifically states that nothing in this policy is designed or intended to prevent or otherwise limit lawful activities under Section 7 of the NLRA.

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Tina A. Syring

Tina A. Syring is a partner in Barnes & Thornburg LLP’s Minneapolis office and a member of the firm’s Labor and Employment Law Department.

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