In 2012, the National Labor Relations Board (NLRB or Board) aggressively staked out positions on employment policies and practices prevalent in both union and nonunion workplaces. These issues include social media policies and practices, at-will statements in employee handbooks, statements to employees in internal investigations about the need to maintain confidentiality, and arbitration policies and agreements. The Board addressed them in the context of union and nonunion workplaces, and regularly brought enforcement actions against nonunion employers for alleged violations of the National Labor Relations Act (NLRA).
Although nonunion employers have always been subject to the NLRA and to the enforcement powers of the NLRB, the developments in 2012 underscore the need for all employers to address the NLRA aspects of common workplace policies and practices. This alert provides background on the NLRA and NLRB and summarizes last year’s developments.
The NLRA sets forth the rights of employers and employees with respect to union organizing and collective action by employees. The NLRA applies to almost all private sector employers.
Section 7 of the NLRA states that in addition to the right to unionize, "employees shall have the right to . . . engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." An activity is "concerted" when an employee acts with or on the authority of other employees and not solely by and on behalf of the employee himself or herself. Concerted activity includes circumstances where individual employees seek to initiate or to induce or prepare for group action. Section 7 applies to all covered employees, regardless of whether the workplace is union or nonunion.
The NLRB is the federal agency charged with investigating and remedying alleged violations of the NLRA. The NLRB is comprised of a five-member Board and an Office of the General Counsel. Board members are appointed to staggered five-year terms, with a new Board vacancy coming up every year. The Board currently consists of only three members — all Democrats appointed by President Obama.
The NLRB’s Office of the General Counsel investigates and prosecutes unfair labor practices. This position is currently held by an Acting General Counsel, Lafe Solomon, whose nomination was sent to the Senate in January 2011 but has not come before the full Senate for a vote. The general counsel serves a four-year term.
In 2012, the NLRB addressed several workplace issues common to both union and nonunion workplaces. In addressing these issues, the NLRB focused on whether an employer’s policies or practices interfered with an employee’s ability to engage in protected concerted activity under Section 7 of the NLRA. The NLRB’s actions highlight the need for union and nonunion employers to review and evaluate their policies and procedures to ensure compliance with the NLRA.
In 2012, the NLRB emphasized that employees who use social media to interact with their co-workers about their working conditions may be engaged in protected concerted activity, and employer social media policies and practices that restrict such activity may violate Section 7. The Board explained these positions in a series of reports, enforcement actions and decisions.
The acting general counsel released two reportsin 2012 addressing social media policies and providing guidance to employers.1 A January 2012report detailed the outcomes of cases concerning the use of social media by employees and employer’s social media policies.2 A May 2012 report analyzed six social media policies that the NLRB found to contain unlawful provisions and a seventh policy that NLRB concluded was lawful (albeit after a revision).3
The NLRB also addressed the issue of social media policies in two cases decided in September 2012. In both cases, the Board concluded that social media policies and other employer rules that broadly limited employees’ posts and communications on social media violated employees' Section 7 rights to engage in protected concerted activity. In one case, the company’s policy stated that an employee’s on-line statements that "damage the Company, defame any individual or damage any person’s reputation" could result in discipline or termination of employment. The Board concluded that this rule was unlawful because employees would reasonably interpret the rule to restrict Section 7 rights — including the employees' right to criticize the company about their working conditions — and nothing in the rule suggested Section 7 activities were exempt from the rule. Similarly, in the second case, the employee handbook had a "Courtesy Rule" prohibiting an employee from being "disrespectful" or using "language which injures the image or reputation of the [employer]." The Board found the "Courtesy Rule" unlawful because employees would reasonably construe the broad prohibition to include Section 7 activity, such as objecting to working conditions or seeking support from others to improve working conditions.
The Board concluded that the Facebook postings constituted protected concerted activity under Section 7 and that the employer violated the NLRA. The Board determined that the initial Facebook comment and the responses were concerted activity because the employees made the comments in "common cause" and because the comments constituted a "first step towards taking group action" to defend themselves against a co-worker’s accusation. The Board rejected the employer’s position that the comments were unprotected harassing and bullying comments in violation of its "no tolerance" policy because the comments were not based on any protected category (e.g., race, sex, religion) and therefore were outside the scope of the employer’s anti-harassment policy. Further, the Board noted that any legitimate managerial concerns to prevent harassment "do not justify policies that discourage the free exercise of Section 7 rights by subjecting employees to . . . discipline on the basis of the subjective reactions of others to their protected activity." The Board ordered that the employer reinstate the five employees and make them whole for lost earnings and benefits, among other remedies.
Social media policies serve legitimate purposes, including protecting against the disclosure of confidential information, prohibiting defamatory statements and prohibiting an employee from making disparaging comments about the employer’s products, services, or customers. But as the NLRB’s recent actions demonstrate, an overbroad social media policy potentially raises NLRA concerns. Unions, in turn, can use a challenge to a nonunion employer’s social media policy as a springboard to organizing.
Employers should review their social media policies in light of the NLRB’s guidance. They also should carefully evaluate the enforcement of harassment or bullying policies to ensure that those policies are not applied so broadly as to prohibit activity protected by the NLRA. And when considering taking an adverse employment action against an employee for the employee’s statement on social media, employers should consider carefully the relevant NLRA issues.
Nonunion employers regularly include statements in employee handbooks confirming that employment is terminable at-will and limiting the authority of managers to change such policies. The NLRB has concluded that certain at-will statements in employee handbooks violate the NLRA because the statements suggest that employees cannot modify their at-will status through collective action and other protected concerted activity. The recent cases and NLRB guidance are instructive to employers.
In a case decided on February 1, 2012, an NLRB administrative law judge concluded that an employer violated the NLRA when its handbook required employees to acknowledge that "the at-will employment relationship cannot be amended, modified or altered in any way." In that case, an employee refused to sign the acknowledgement and her employment was terminated, leading to an unfair labor practice charge. The judge concluded that the at-will statement effectively required an employee to waive his or her Section 7 right to take concerted action to change the at-will status of employment. The judge concluded that such a provision may restrict employees from working together to collectively bargain for a change in their employment status.
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