An Unfair Employer Policy Roundup to Help Avoid Unfair Labor Practices

For the past few years, the National Labor Relations Board (NLRB) has been on the warpath over employer personnel policies (and in turn, we at Labor & Employment Law Perspectives have missed few opportunities to point out the NLRB’s relentless campaign against employers). Policy language which had been commonplace and acceptable for decades has suddenly been deemed to have a “chilling” effect on employee rights under federal labor law, and therefore, is illegal under the National Labor Relations Act. Many of these decisions have been arbitrary, inconsistent, and lacking in common sense. Nevertheless, employers — both union and non-union — are stuck with them, at least for the time being. Therefore you need to stay abreast of the latest developments in this area.

While the dizzying array of recent NLRB decisions on personnel policy language is often very fact specific, and seemingly dependent on factors which defy easy description or understanding, there are certain categories of personnel policies that have received the most recent attention from the NLRB. There are a handful of patterns that seem to emerge from each of those areas:

Policies on maintaining confidentiality: The NLRB has made clear that broad language requiring employees to maintain confidentiality about workplace issues is likely to be troublesome, and that employees must be allowed to discuss with others their workplace concerns. Employers are, therefore, well advised to offer specific guidance in their policies as to what is considered “confidential” and to limit that definition to financial, strategic, or marketing information, which is proprietary and not available to the general public.

Policies on workplace conduct standards: The NLRB has directed that employer policies must not foreclose certain kinds of workplace behavior violations, if doing so could be viewed as shutting down employee ability to engage in protected activity under federal labor law. For example, policy statements that “offensive” or “disrespectful” behavior is unacceptable have been found unlawful by the NLRB. While reading NLRB tea leaves in this area is a daunting task, we can say that employer policies are less likely to be put through the NLRB grinder if they describe serious or illegal misconduct such as insubordination, threats, or harassment.

Conflict of interest policies: Broad language prohibiting employees from engaging in actions that are in conflict with employer interests is very likely to draw fire from the NLRB. Instead, policies in this area should more specifically focus on conflicts with employer business or financial interests, or engaging in activities that would interfere with an employee’s judgment in performing his or her job responsibilities.

Policies on interactions with third parties: Employer policies that prohibit employees from speaking to the media or to government agencies will almost certainly be struck down by today’s NLRB. Instead, employers should make clear that employees, if speaking to the media, should make clear that they are not speaking on behalf of the employer and are expressing their own views. Additionally, any limitations on employees speaking with government agencies or outside investigators are very likely to be struck down.

Social media policies: The NLRB has been very sensitive about social media policies that may restrict employee social media activities. Broad language prohibiting employees from making comments on social media “not in the employer’s best interests” or which “reflect poorly on the company” are likely going to be found unlawful. More pinpointed restrictions, such as prohibiting employees from sharing properly defined confidential or proprietary information, are more likely to survive NLRB review. Additionally, employees may be instructed that they should make clear that their comments on social media do not reflect the official views of the company.

Solicitation/distribution policies: This favorite target of NLRB criticism continues to be an area which employers must look at very carefully to ensure that there are no words, phrases, or sentences that may be in violation of NLRB dogma in this area. Periodic legal review of these policies is a must.

Policies restricting employees’ ability to leave work: Many employers maintain policies that prohibit employees from leaving work without permission, or walking off the job. Perhaps not surprisingly, the NLRB has taken the position that such a policy may lead employees to believe that they cannot engage in protected strike activity or other protected job actions and is, therefore, unlawful. An exception to this has been recognized for employees who provide direct patient care services, but the general issue remains.

Unions are more and more often filing unfair labor practice charges with the NLRB about personnel policy language in an effort to gain organizing leverage against non-union facilities. For these reasons, employers of all kinds should review their policies regularly in order to ensure they do not violate the latest and not-so-greatest NLRB standards in this ever-changing area.

Source: Foley & Lardner LLP