In recent years, the National Labor Relations Board (“NLRB”) has taken an unprecedented interest in the regulation of non-union workplaces.
In recent years, the National Labor Relations Board (“NLRB”) has taken an unprecedented interest in the regulation of non-union workplaces. The NLRB, a federal agency, was created in 1935 with the passage of the National Labor Relations Act (“NLRA”). The NLRA is a federal law that grants employees the right to: (1) form or join unions; (2) engage in protected, concerted activities to address or improve working conditions; or (3) refrain from engaging in these activities.
Many employers mistakenly believe that the NLRA does not apply to them if they are not unionized. In fact, the NLRA applies to most private sector employers. Historically, the NLRB has focused on the organization of unions and the regulation of union activities. With union membership on the decline, the NLRB is attempting to stay relevant by focusing on employees’ right to engage in “protected, concerted activities,” a right afforded to all employees, not just those who are members of unions.
One example of the NLRB’s attempt to broaden the scope of its authority is the NLRB’s March 26, 2014 determination that some college football players are “employees” and, therefore, are entitled protection under the NLRA. In Northwestern University and College Athletes Players Association, Case No. 13-RC-121359, the Chicago office of the NLRB issued a decision finding that college football players who receive scholarships and stipends of over $60,000 a year are employees eligible for protection and unionization under the NLRA. Northwestern University has appealed the decision to the full NLRB.
The NLRB has likewise found employers to have violated employees’ “protected activity” rights in a myriad of seemingly irrelevant situations, including taking action on the basis of derogatory social media posts. Examples of protected concerted activities as determined by the NLRB include:
• Making formal or informal complaints as part of a group about topics such as air quality, rest rooms, lunch breaks, overtime, evaluation system, morale or the like.
• Speaking out about wages, benefits or working conditions in a meeting, letter, petition, bulletin board posting, or email, even if done anonymously.
• Posting derogatory criticisms of a supervisor on Facebook.
• Complaining to customers about employment terms and conditions.
For example, in a decision issued on September 28, 2012, the NLRB determined that a car salesman who posted sarcastic comments and photos on Facebook about an auto dealership marketing event held by the dealership had engaged in activity protected by the NLRA because the employee was complaining to other salesmen and the general public about his employer’s “low budget” hot dog reception for BMW customers, which salesmen believed could negatively impact their commissions. See Karl Knauz Motors, Inc. d/b/a Knauz BMW and Robert Becker, Case No. 13-CA-046452, 358 NLRB No. 164.
It is important to note that the NLRA provides that an employer’s intent or motive is generally not determinative of whether the employer has engaged in conduct that has the effect of interfering with or chilling concerted protected activity whether intended to or not. Employers should also note that, although social media appears to be a catalyst for these recent NLRB decisions, the NLRB has focused on the content of the communications, rather than the methods of communication used by employees. Social media is one forum of communication, but face-to-face, telephone and hand and typewritten communications can be considered concerted protected activity, depending upon the subject matter being discussed.
The NLRA does not protect employees who engage in:
• Public criticism of the employer’s product or services;
• Breach of legitimate workplace policies protecting company business, trade secrets or customer confidential information;
• Criticisms unrelated to terms and conditions of employment; or
• Disruptive, profane, vulgar or violent behavior.
The NLRB has also taken a keen interest in employer confidentiality, non-disparagement and at-will employment policies that run afoul of labor law protections. The NLRB has power to strike down employer rules and policies that “reasonably tend to chill employees in the exercise of their Section 7 rights” Even if never enforced, rules can be invalidated and ordered rescinded by the NLRB if they explicitly restrict employees from engaging in protected activity. The NLRB can also strike down a rule if employees “would reasonably construe the rule to prohibit such activity” or if the rule has been so enforced in the past.
Some examples of rules and policies that run afoul of the NLRA are:
• Policies prohibiting employees from making disparaging comments about the company through any electronic media, including online blogs or social networking sites.
• Rules prohibiting employees from discussing their salaries with anyone other than their supervisors and human resources.
• Standing policies or instructions from management that direct employees not to discuss the subject of an internal investigation with co-workers (such directives may be made on a case by case basis but management must have a rationale (e.g. protection from retaliation).
• Rules prohibiting use of “disrespectful” language that injures the images or reputation of the employer.
• Rules against “inappropriate online behavior.”
• Disciplining employees for talking about their employment with anyone outside the company.
• Policies against sharing information such as employee names, addresses, phone numbers and email addresses.
• Policies stating that employees may only direct complaints to their supervisors or the Human Resource Director.
• Rules requiring employees to resolve employment issues and disputes through individual proceedings under the company’s grievance and/or arbitration procedure.
The NLRB has determined that employers can require employees to use “appropriate business decorum” when communicating with others. Further, employers can inform employees that they are not required to participate in any social media and that no employee should ever be pressured to “friend” or otherwise communicate with another employee via a social media outlet.
Employers should take care to be specific and not overly broad in drafting company rules and policies. We recommend that employers identify the specific, legitimate business concerns to be addressed by policies and include in their handbooks and written policies a disclaimer that the company does not intend to violate employee rights under the NLRA. Employers should also consider copying rules that have already been approved by NLRB. It is important that employers stay current with developments in the law.
Under the NLRA, employers that interfere with the rights protected by the NLRA have engaged in “unfair labor practices.” If an employee believes his or her NLRA rights have been violated, he or she may file a charge against an employer or a labor organization with the NLRB. The NLRA prohibits employers or unions from retaliating against employees for filing charges or participating in NLRB investigations or proceedings. Although the NLRA does not permit the NLRB to assess penalties, the agency may seek make-whole remedies, such as reinstatement and back pay for discharged workers, and informational remedies, such as the posting of a notice by the employer promising to not violate the law.
If you have specific questions regarding the NLRA or how it affects your employment policies and procedures, or if you need assistance updating your employment policies, please contact any of the members of Drew Eckl and Farnham’s Employment Law Section – Joe Chancey at (404) 885-6222 or JChancey@deflaw.com; Dan Kniffen at (404) 885-6411 or DKniffen@deflaw.com; Megan Mathews Noble at (404) 885-6142 or MNoble@deflaw.com; and Meredith Guerrero at (404) 885-6321 or MGuerrero@deflaw.com.