In recent years, the National Labor Relations Board has been aggressive in its interest in non-unionized workplaces. The National Labor Relations Act applies to employers engaged in “interstate commerce” and the board is increasingly targeting non-union employers. A March 18 report from the NLRB Office of the General Counsel focuses on handbook policies and serves as a comprehensive view of the board’s current position with respect to a number of policies.
Generally, the NLRA guarantees employees—in both union and non-union settings—the right to engage in “concerted activity,” which is when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment. A single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees. Policies that interfere with, restrain or coerce employees in the exercise of these rights violate the act.
The general counsel’s report reviews illustrative rules on subjects that are commonly at issue in unfair labor practice cases, attempts to explain why common rules may violate the act and includes “model” policies that resulted from a board settlement with a national restaurant chain. Here are some highlights from the March 18 report:
Confidentiality of employee information or workplace conditions. Broad rules that relate to employment information or workplace conditions will be considered unlawful if they fail to exclude discussions protected by the act. This includes prohibitions on disclosure of employee lists, contact information, personnel file materials, handbooks and policies, or pay or benefits information. For example, employers cannot tell employees not to talk about terms and conditions of employment, such as wages and benefits.
Advocacy and argument among employees. The NLRA protects the right of employees to argue and debate with one another about unions, management and workplace conditions, and such conversations do not lose this protection even if “intemperate, abusive and inaccurate.”
Negative publicity, criticism and false statements. The act broadly protects the right of employees to criticize or protest labor policies or alleged mistreatment by management. Rules that restrict criticism by requiring only truthful statements about the employer, or prohibiting false statements, are unlawful. Employee criticism of management must be maliciously motivated to lose the protection of the act. Rules that restrict employees from seeking public support in labor disputes also are unlawful.
Media communications. Rules restricting or requiring preapproval of public statements about the employer interfere with rights protected by the act. To be lawful, rules cannot be read to prevent employees from speaking to the media or others on their own behalf or for their co-workers.
Conflicts of interest. The act protects the right of employees to engage in concerted activities, even when it is in conflict with the employer’s interests. For example, employees may protest in front of the company, organize a boycott and solicit support for a union while on non-work time.
Anonymous postings. Rules that prohibit employees from posting anonymously on social media will generally be unlawful.
Use of the employer’s logos, copyrights and trademarks. Rules cannot prohibit employees’ fair use of intellectual property. Fair use includes using the employer’s name and logo on picket signs, leaflets and other protest material.
Electronic distributions. Electronic distributions are permissible so long as they do not occur on working time and blanket prohibitions of use of employer email for personal reasons, such as solicitation for a cause, may be deemed unlawful.
Photography and recording in the workplace. The report advises that employees have the right to photograph and make recordings in the workplace, including the right to use personal devices for that purpose, during non-working times.
The board’s focus when reviewing workplace rules is on what a reasonable employee would infer, or may infer, after reviewing them. Innocent mistakes and misunderstandings or lack of intent to mislead employees or restrict the exercise of their rights is no defense. Employers are well-advised to carefully review their handbooks, with experienced counsel as necessary, and assure that all of their workplace rules and policies comply with the board’s current precedents before a charge is ever filed.
Jill Lowell is an associate in the Rochester office of Littler Mendelson. Jacqueline Polito, a shareholder in the Rochester office, co-authored this article.
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