Our last post set out some of the key points for employers from the recently-published analysis of social media cases by the General Counsel (GC) for the National Labor Relations Board (NLRB). (NLRB Press Release and link to the GCs Analysis available here http://www.nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases) In this post we set out some of the key points about employer policies and employee handbooks gleaned from the GCs analysis.
Most private employers are covered by the National Labor Relations Act (NLRA) and need to be mindful of the GCs labor law analysis in setting policies and drafting employee handbooks. Policies maintained by an employer, even without any enforcement, can be a source of labor law disputes before the NLRB. Sometimes more importantly, they can become significant obstacles to union avoidance when there is union organizing in the workplace.
Here are some of the key points about policy drafting from the GCs Analysis.
- 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.
One primary question for many employers coming from the GCs analysis will be whether the employer can stomach the policy limitations the NLRB has in mind. Is the employer willing to write a policy that allows a worker to call his supervisor a scumbag without facing discipline as the NLRBs rulings contemplate? If not, many employers will face the difficult choice between drafting and maintaining policies in a form workable for operating their businesses on the one hand or in a form acceptable under the NLRA on the other.
While this choice is not very palatable, it can at least be said that the GCs analysis provides a somewhat greater degree of certainty in these matters than employers may have felt they had before. If only that certainty seemed to fit a little better into the realities of the modern workplace!