Aug 6, 201212:00 AMForward HR
with Diane Hamilton and Nilesh Patel
The NLRB wants companies to clean up their employment handbooks
Attorney Nilesh Patel is a member of Wisconsin SHRM, which is dedicated to being the state leader in HR management and premier source for HR expertise and resources. More information can be found at: http://www.wishrm.org. Nilesh is the principal attorney of the Mahadev Law Group, LLC, which focuses on human resources and employment law issues for organizations. He can be reached at firstname.lastname@example.org.
Concerted activity is protected
The NLRB can protect the rights of employees even when there is no union. One employee or a group of employees banding together to speak up about the terms and conditions of their workplace can be enough to trigger NLRB’s involvement. Such employee activity is called “concerted activity for mutual aid and protection.” In recent times, the NLRB has found concerted activity in the following examples where non-union employees spoke up and were disciplined or terminated:
- A group of women requested a meeting with human resources to discuss concerns about a supervisor who was a registered sex offender.
- Employees refused a supervisor’s order to work due to safety concerns during a storm.
- A group of employees walked off the job to protest a requirement that they pay for work equipment, and a few spoke to a local newspaper.
- An employee complained that others were receiving unfair special treatment.
The common theme in each case was a workplace issue that could affect more than one employee.
Employer policies cannot have a chilling effect
Lately, the NLRB has advanced a troubling new theory for protecting concerted activity. The agency has taken the position that employer policies that have a “chilling effect” on concerted activity are unlawful. You hear the term “chilling effect” mostly in First Amendment cases, where a vague law or rule inhibits or prevents people from exercising free speech rights.
In a similar manner, the NLRB is targeting vague language in employee handbooks or employment policies that may make workers think twice or altogether prevent participation in concerted activity. The process started with social media policies but has applied to confidentiality policies, media policies, employment at-will statements, and even a non-disclosure requirement during workplace investigations.
Examples of language the NLRB has found unlawful include:
- “Never share confidential information with another team member unless they have a need to know the information to do their job. If you need to share confidential information with someone outside the company, confirm there is proper authorization to do so. If you are unsure, talk to your supervisor.”
- “You must also be sure that your posts are completely accurate and not misleading and that they do not reveal non-public company information on any public site.”
- “Offensive, demeaning, abusive, or inappropriate remarks are as out of place online as they are offline.”
- “Don’t comment on any legal matters, including pending litigation or disputes.”
- “Unless you receive prior authorization from the Corporate Communications Department to correspond with members of the media or press regarding [Employer] or its business activities, you must direct inquiries to the Corporate Communications Department.”
Contending with the NLRB
The trouble for employers and human resources departments is that employment policies are written generally. It is doubtful every single instance of what is or is not okay could be captured in a policy. Therefore, the policies are written as general guidelines that provide the boundaries for acceptable professional behavior. However, unless employers want to risk an NLRB complaint, they should review their policies and determine whether rules once thought to be rather straightforward can now be viewed as having a chilling effect on concerted activity.
If an employee could possibly view a rule as prohibiting the right to speak up about workplace conditions with other employees, with supervisors, with the media, or with government agencies and investigators, the policy needs to be amended and space carved out to clarify that concerted activity rights will not be restricted.
Beyond creating more administrative work, the agency’s new approach is more troubling when it invents problems where none exist and interferes with legitimate employer concerns. For example, the agency found an at-will statement unlawful when the policy said that only a signed agreement between the employee and a company officer could change at-will employment. Employers have such language to ensure that their handbook does not inadvertently create a contract for a length of employment. Yet the agency said employees would think that unionizing or acting together to change the at-will status would be pointless. To me, that position sounds speculative and overbroad.
Nothing in the policy said change was not possible. In fact, the policy left the door open for changing the at-will status through a signed agreement. Second, these types of policies have been around for ages and neither employees nor other agencies have complained that they interfere with protected rights. To my knowledge, even policies that have stated that “employees can be fired for any reason or no reason, not prohibited by law,” have not interfered with employees’ ability to know about or file complaints under other employment laws or affected their ability to unionize. Yet the NLRB is suddenly claiming language that allowed for a change in status can have a chilling effect. The agency insists that employer policies more clearly indicate that concerted activities are protected. This means the “not prohibited by law” disclaimer would not save a questionable policy. Neither would a general disclaimer pledging not to interfere with concerted activity.
The NLRB’s new stance has not resulted in any new case law because the companies facing complaints have settled, likely to spare the cost of expensive litigation. I hope there will be guidance from the courts in the future saying that the agency’s interpretation, at least regarding at-will employment statements, is overbroad and too new or speculative a theory to deserve judicial deference or approval. Alternatively, perhaps a court will agree that the NLRB is violating employers’ First Amendment rights by restricting at-will statements that do not clearly interfere with an employee’s concerted activity rights. Until that time, however, the more cost-effective option would be to revise policies in a manner that achieve their original goal, while not running into trouble with the NLRB.
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