As we start the new year, union and nonunion manufacturers may wish to consider dusting off their employee handbooks and policies. The National Labor Relations Board (Board), led by a Democratic majority for the last several years, has thrown a wide net over the scope of protected employee conduct, even reaching beyond the traditional unionized workplace. The Board has ramped up its engines and is motivated to prosecute employers for any employer policies that are likely to have a chilling effect on employee rights under the National Labor Relations Act, even if such handbooks and policies have never served as the basis for employee discipline or other adverse employment action.
It has long been the law that employees – nonunion or union – are engaged in protected concerted activity when they talk with each other about their wages, hours, and working conditions and that an employer may not discipline or discriminate against employees who engage in such discussions; however, the Board has never before waged an information campaign to highlight these specific rights. The Board is promoting the National Labor Relations Act rights afforded to nonunionized employees and has developed a protected concerted activity website that emphasizes these rights. Their goal is to educate nonunionized workers about their rights to engage in protected concerted activity. The agency has also published pamphlets in English and Spanish that explain such rights and is distributing these pamphlets through worker advocacy groups and other federal agencies, such as the U.S. Department of Labor.
Based on a flurry of recent cases that have come before the Board and/or an Administrative Law Judge, employers should pay special attention to any workplace rules governing social media, class action waivers, confidentiality, at-will disclaimers, pay, email, behavior, conflicts of interest, and disciplinary policies and consider whether any policy or handbook language could potentially discourage employees from exercising their rights under the Act. According to these Board cases, the mere maintenance of an unlawful rule may violate the Act if the rule is likely to interfere with, restrain and/or coerce employees in the exercise of guaranteed rights.
The following provisions have been scrutinized in these cases and were found to be unlawful:
- A prohibition against making “disparaging or defamatory comments about the employer, its employees, officers, directors, vendors, customers, partners, affiliates, or our, or their, products/services” through the use of social media;
- A provision restricting employees from disclosing information to the media including the press, print, broadcast and their electronic versions and associated websites regarding the employer and its activities without the prior approval of the Company;
- A provision prohibiting employee contact with government agencies and employee disclosure of governmental agency initiated communications to the Company;
- A provision prohibiting employee disclosure of Company investigations involving employer policies, practices, expectations and any applicable law or any other behavior deemed relevant to employment with the Company;
- A provision prohibiting employees from using personal social media with Company resources and/or on Company time;
- A provision defining insubordination as undermining the Company, management, or employees;
- A provision stating that the at-will employment relationship cannot be amended, modified or altered in any way.
Given the pro-Obama Board’s trend over the last several years, employers may wish to consider narrowly tailored policies that protect the Company’s legitimate business interests and do not restrict employee rights under the Act. The policies may provide examples, where necessary, and not discourage concerted activities. While not bulletproof, employers may consider a provision that clarifies that the policies “do not otherwise impact an employees’ right to collectively bargain or engage in concerted activities regarding the terms and conditions of employment.” Specifically, employers should consider eliminating a provision that may ban employee discussions regarding issues such as wages, pay practices, benefits and complaints to management that could be perceived as protected, concerted activity under the Act.