Why All Employers Need to Worry About the NLRB

(Even if Your Workforce is Not Unionized)

            Recently, the National Labor Relations Board has expanded its reach into non-unionized workplaces and has caused a stir in the field of employment law by invalidating what most would say are standard clauses in employee handbooks.  

            First, a primer on the National Labor Relations Board ("NLRB") . This is the agency that enforces the National Labor Relations Act ("NLRA"). Through the language in Section 7 of the NLRA, the NLRB is launching a new campaign to educate and protect workers' rights to act together even if they are not in a union.   Section 7 of the NLRA states that:

"Employees shall have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities."

            Over the years, this provision has been interpreted to protect employees who take action to discuss, promote or protect working terms or conditions. Traditionally, this has been used to protect workers who campaign for a union. Now, however, the NLRB is using this provision to address things like social media policies, statements regarding at-will employment in employee handbooks and confidentiality of company investigations.

            The first case involved a paramedic who was fired after posting complaints about her supervisor following a work-related accident. Some co-workers also commented on the employee's post. The NLRB used the comments to assert that the employees were acting collectively and that, because they were complaining of a disciplinary decision, the comments were about the terms of employment.   The NLRB filed a complaint against the employer saying that it committed an unfair labor practice. The case was settled before a hearing.

            Since that case, there have been other decisions and memoranda from the NLRB that warn employers that blanket policies prohibiting employees from making statements online that could damage the company or divulge confidential information are overbroad and a violation of Section 7 of the NLRA, because those policies could be construed to prevent employees from their right of collective bargaining. Another NLRB decision invalidates a provision in an employee handbook reminding employees that they are at-will employees, that the terms of the handbook do not change that status and that the terms and conditions of employment can be changed only through an authorized change to the handbook. The Board found that this language could indicate that the employees could not make a change to the terms of employment through collective bargaining. Lastly, the Board has stated that a HR consultant who asked employees involved in investigations not to discuss the facts with co-workers violates the NLRA.

            Based on the recent actions of the NLRB, it appears that it is taking an active interest in both union and nonunion workers and any attempt by employers to restrict employees' rights to work together to make changes to the terms of their employment. Employers should take time to review their handbook and policies to ensure conformity with Section 7 of the NLRA.