When employers think of the National Labor Relations Act (NLRA) and the National Labor Relations Board (NLRB), they often focus on union–management relations, and disputes over union organizing campaigns and unfair labor practices. But regardless of whether a workplace is unionized, Section 7 of the NLRA protects employees engaging in “concerted activities for the purpose of collective bargaining or other mutual aid and protection.” Section 8(a)(1) of the NLRA also makes it an unfair labor practice to discriminate against employees exercising Section 7 rights. This protects the rights of both union and non-union employees to discuss wages, hours, and other terms and conditions of employment, and take collective action to alter the terms and conditions of employment. Now the NLRB and its General Counsel are taking an unprecedented and aggressive approach to enforcement of the NLRA, and many routine policies and practices of non-union employers are targeted in this initiative.
In February of 2014, NLRB General Counsel Richard Griffin issued a memorandum to NLRB field offices to centralize and coordinate the handling of issues that are important to the Board and General Counsel, and identified several topics affecting non-union employers. When the recent activities of the Board are evaluated together with the General Counsel’s memorandum it becomes apparent that non-union employers may feel the greatest impact of the current enforcement efforts.
A key element in many of the NLRB’s current initiatives affecting non-union employers is whether a rule or policy of the non-union employer will somehow chill employees in the exercise of their right to engage in concerted activities. Many employer policies that are intended to prevent unlawful harassment, facilitate employer investigations of inappropriate conduct, prevent harm to the company, or safeguard confidential employee and customer information, may be challenged by the NLRB as chilling the protected right of employees to band together and affect the terms and conditions of their employment.
Social Media Policies
The use of social media poses a difficult issue for employers. It can be an effective marketing tool, but it can also be an instrument of workplace harassment and abuse, and the use of social media can harm a company’s reputation through the broadcast of confidential or damaging information to employees and customers. While there are legitimate reasons for social media policies, the NLRB has warned that overbroad social media policies may violate employees’ Section 7 rights. In Costco Wholesale Corp., the Board ruled that Costco’s policy that statements that “damage the Company, defame any individual or damage any person’s reputation” may be subject to discipline was overbroad and could be read to ban employees from protesting the company’s treatment of workers.
Employers have legitimate business reasons for adopting confidentiality policies to protect proprietary work processes, employee information, and investigatory and disciplinary actions. Especially in the context of investigating claims of sexual harassment, discrimination, or other misconduct, employers, victims, and the accused have an interest in confidentiality and the integrity of investigations.
Unfortunately, the NLRB has taken the position that it is an unfair labor practice to maintain a blanket rule prohibiting employees from discussing ongoing investigations of employee misconduct, and continues to challenge confidentiality rules that are founded on legitimate business purposes. For example, the NLRB has struck down policies requesting that witnesses in HR investigations not discuss the investigation until it has concluded. Confidentiality still has a role in investigations, but employers must be careful regarding the confidentiality admonitions given during an investigation, and must be prepared to articulate how the need for confidentiality outweighs employees’ Section 7 rights.
Overbroad rules prohibiting employees from discussing “confidential information,” including “personnel information,” with individuals “outside the organization” will also be found to violate Section 7. An employer may reasonably believe such a policy is necessary to prevent the dissemination of confidential employee information and safeguard against identity theft or violations of privacy, but in Flex Frac Logistics, the NLRB held such a restriction overbroad as it prohibited employees from discussing the terms and conditions of employment with union representatives.
The Board’s interpretation of the NLRA makes it difficult to protect confidential company and consumer information, and employers should restrict access to confidential information to those who truly need access as part of their job duties. This result is dictated by cases like Costco Wholesale Corp., in which the NLRB ruled that Costco’s confidentiality rules prohibiting disclosure of personal information regarding customers and employees, such as the name, address, phone number, e-mail address, social security number, membership numbers and credit card numbers of employees and customers, as well as prohibiting the sharing or copying of membership, payroll, confidential financial, credit card numbers, social security numbers, or employee personal health information violated the NLRA. According to the NLRB, these prohibitions were overly broad and unlawful because they drew no distinction between information obtained in the ordinary course of work and information obtained from Costco’s confidential records, and would prevent discussion of timecards or posted work schedules. Thus, it is very important that employers carefully prepare their confidentiality policies, and take steps to ensure that they do not interfere with concerted activities protected by the NLRA.
Employment At-Will Policies
It is standard for employers to include “at-will” employment language in their handbooks or require new hires to acknowledge that their employment is “at-will” and either party can terminate the relationship at any time, for any otherwise lawful reason. Surprisingly, the NLRB has suggested that, depending upon the language used, such a policy may violate the NLRA. For example, an “at-will” policy is subject to challenge by the NLRA if it includes language stating that the “at-will” relationship “cannot be amended, altered, or modified in any way as,” it will be construed to preclude employees from taking collective action or forming a union to bargain and alter the “at-will” relationship. General Counsel Griffin appears interested in finding cases to establish precedent that such restrictive “at-will” policies violate the NLRA, and his memorandum included cases involving “at-will” policies as among those that are to be coordinated with his office. Employers should review their “at-will” employment agreements and disclaimers to ensure that they do not foreclose the possibility of modifications of, or collective bargaining over, “at-will” status.
“Weingarten” Rights for Non-Union Employees
In unionized workplaces, employees have the right to demand that a union representative be present during investigatory interviews that could lead to discipline. This is often referred to as “Weingarten” rights as they are based upon the U.S. Supreme Court’s decision in NLRB v. Weingarten. The NLRB has vacillated on whether such rights exist for non-union employees. It has alternatively reasoned that: 1) the right to have a representative at investigatory interviews is derived from Section 7 and it attaches in non-union settings, and 2) it does not apply in non-union settings as the employer has the right to deal with employees on an individual basis, and giving employees in non-union workplaces the right to representation is tantamount to union representation in inquiries contrary to the intent of the NLRA. General Counsel Griffin’s recent memorandum (GC 14-01) outlining the priorities for the NRLA and his office indicates that they intend to find cases in which they can impose “Weingarten” rights in non-union settings.
Solicitations and E-Mail Using Employer Facilities
Company e-mail systems are an important workplace tool for communication, but these systems are not without problems for HR. E-mail may be abused, and may be used for a variety of non-work related solicitations and communications that interfere with work. As a result, many employers have adopted policies that limit the use of company e-mail to work-related purposes, or provide limited exceptions for other communications or charitable solicitations that receive company approval. Whether employees or outside organizations such as labor unions have the right to access employer e-mail systems to communicate with employees on non-work related topics continues to be a sore point for many labor organizations.
During the Bush administration, in Register-Guard the NLRB held that employees do not have a right under the NLRA to use their employer’s e-mail systems for non-work related communications, and that employers and may enforce limits on the use of company e-mail, provided the limits are not enforced in a discriminatory manner. Although the more labor-aligned Board under the Obama administration has continued to uphold policies that limit the use of electronic media to “business purposes only” or permit limited personal or charitable use with managerial consent, it has questioned whether Register-Guard was correctly decided and appears to be looking for the right case to use to overturn Register-Guard. General Counsel Griffin also suggested that he intends to break new ground on the right of employees to use the employer’s e-mail systems for union organizing and other Section 7 activities. Employers in non-union and union workplaces should revisit their policies to ensure they do not chill or discriminate against Section 7 activities both as written and as enforced.
Class Action Waivers
The NLRB has been particularly aggressive in challenging arbitration agreements which require employees to pursue claims individually rather than on a class basis. Although arbitration agreements are favored under the Federal Arbitration Act (“FAA”), the NLRB is making a concerted effort to challenge such agreements as chilling Section 7 protected activity. Although the Fifth Circuit Court of Appeals (covering Texas, Louisiana, and Mississippi) held that the NLRB was wrong to invalidate such agreements, the NLRB has cited its policy of “nonacquiescence” and stated that it will continue to challenge arbitration agreements requiring individual hearing of claims until the Supreme Court expressly rules that employees’ Section 7 rights under the NLRA do not invalidate agreements protected by the FAA.
Employers in non-union workplaces may not have the NLRA in mind when crafting their policies and practices or when taking disciplinary action against employees. However, the employees are protected by the NLRA regardless of whether they are represented by a union. The NLRB and its General Counsel are making a conscious push to increase enforcement of the NLRA in non-union workplaces, and indeed many of the policy initiatives now being pursued will have the greatest impact upon non-union employers. When undertaking their periodic review of their handbooks and policies, or taking disciplinary action based upon their policies, employers must consider the NLRA and whether their actions will have the effect of chilling or discriminating against the exercise of rights protected under the NLRA.