- A workplace policy may violate the labor law even if the employer has never applied or enforced the policy. The NLRBs inquiry in this regard is whether simply having the policy and publishing it to employees would tend to chill the exercise of employees labor law rights.
- The NLRB often finds a policy to be in violation of the NLRA where it is simply overbroad. Because of this, it is important to carefully define key policy terms. The NLRB also expects employers to clearly limit the application of a policy so employees know it will not be applied to interfere with their NLRA Section 7 rights to engage in or refrain from concerted activity.
- It may be sufficient to approach such limitation by simply stating something like, the employers policies will not be applied, and should not be construed, to interfere with the exercise of any right protected by Section 7 of the NLRA.
- On the other hand, it seems as if the NLRB will sometimes expect a limitation to be stated more specifically so that the policy cannot be reasonably construed to interfere with employee rights.
- For example, it might be necessary in a social media policy to state that the policy will not apply where employees are engaged in discussions with or on behalf of coworkers about terms or conditions of employment, perhaps including wages and benefits. In a policy prohibiting employees from posting anything that identifies them with the employer, it might be necessary to state the policy will not apply in any situation where there is a concerted protest related to a labor dispute. In a policy prohibiting disparagement of the employer, there might need to be a similar exception for situations involving concerted activity over terms and conditions of employment.
PartnerMark Mathison advises and represents a wide range of employers, including corporations, nonprofits, and educational organizations, on labor and employment law issues in the workplace. Mark’s practice has a significant focus ...
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