Monday, March 23, 2015

NLRB General Counsel Gives Guidance on Employee Policies

Until or  unless a change occurs in either the composition of the federal and state labor relations boards, or a the legislature amends the state and federal labor relations acts, employer must face the reality that the trend in rulings on workplace rules remains decidedly in favor of finding employee protections. To that point, last week the General Counsel of the NLRB reported on its findings of lawful and unlawful employee handbook policies covering eight general areas of employee activity protected by Section 7 of the National Labor Relations Act. Section 7 of the NLRA generally protects the concerted activity of employees to speak together on wages and working conditions and their right to unionize. Similar protections are afforded public employees in Illinois. 

According to the General Counsel, the NLRB finds Section 7 violations when 1) an employee reasonably believes that the rule or policy restricts their Section 7 rights; 2) the rule or policy was promulgated in response to union activity or other Section 7 rights; 3) the rule or policy is applied to restrict or deny an employee’s Section 7 rights.  

We often remind public employers that just as the state public employee labor relations acts are modeled after the NLRA, the state labor relations boards, as the agencies that enforce these labor acts, take their cue from the National Labor Relations Board reasoning and decisions.  While the guidance contained in the recent General Counsel report is directly applicable to private employers, public employers should take heed of the advice or run the risk of being a “test case” with a state labor board action.  The report identifies eight issues, we will discuss two of those eight today.

1. Rules or Policies Regarding Confidentiality

The gist of the General Counsel’s advice, based on case decisions, is that any policy that prohibits or can reasonably be believed to prohibit employees from talking with one another and with others (i.e. leafleting, picketing, commenting) about employer policies, wages or other terms and conditions of employment will be found unlawful. Think about the well known Purple Monkey Communications case decided last year, where the NLRB found that the company’s policy prohibiting use of its email system by employees for personal use was over broad. Some examples of this from the General Counsel  include the following:

  • Do not discuss customer or employee information outside of work. (the General Counsel cautions that the restriction of discussing employee information outside of work restricts discussion of wages, hours, terms and conditions of employment.)

  • Discuss  work matters only with individuals who have a reason to know of the information. (Again, the General Counsel  finds this overly restricts employees from discussing their employment not only with each other but with individuals outside of the workplace.)

On the other hand, broader confidentiality policies, that do not address communication about  wages or working conditions, are likely to be found to be lawful, and especially policies which prohibit disclosure of business information. The General Counsel gave the following as one of his examples of a lawful work rule:

  • Misuse or unauthorized disclosure of confidential business information is prohibited and cause for discipline, including termination.

It is important for employers to review their confidentiality policies to ensure that they do not prohibit employees from exercising their right to discuss working conditions or to organize. So, while it is appropriate to ban disclosure of confidential information, it is important to note that what employees are paid and their working conditions are not confidential.

2. Rules or Policies Regarding Employee Conduct Toward the Employer and Supervisors
As the raft of decisions from the NLRB has already taught us, that agency (and presumably the state’s labor boards)broadly  protects the speech and conduct of workers who are engaging in what it deems to be protected concerted activity. This protection goes well beyond employee speech in actually organizing workers, and encompasses even personnel that is not organized or in an organizational campaign. We see it most commonly now in the many cases about employees’ comments, criticisms and even misinformation (unless done so maliciously) on social media.  So, policies that prohibit rudeness or inappropriate comments about co-workers and supervisor or the employer itself, will likely be unlawful as overly broad and inhibiting an employee’s right to engage in protected concerted action of talking about working conditions or wages. Some examples of unlawful rules given by the General Counsel include the following:

  • Be respectful of others and the company. (Employees have a right to criticize the company as part of protected concerted activity, which their employer may find to be disrespectful)
  • No defamatory, libelous, slanderous or discriminatory comments about the company, its customers and/or competitors, co-workers or management. (This rule would probably be acceptable if it did not include management.)

While the NLRB will uphold a policy that prohibits insubordination, if the policy that prohibits that activity also includes a ban on other employee conduct that is protected, the  rule or policy itself will likely be found unlawful. The General Counsel gave the following example:

  • Disrespectful conduct or insubordination, including but not limited to refusing to follow orders from a supervisor or designated representative [is prohibited]. (elimination of the ban on disrespectful conduct would likely render this rule lawful.)

Employers should review their conduct policies to ensure that they do not inadvertently violate the law by restraining employee’s protected concerted rights. 

Tomorrow we will review more of the General Counsel’s guidance on policies and rules.