Signs point to more employer-friendly bent to NLRB
Over the past several years, the National Labor Relations Board (NLRB) has found numerous and regular faults with employer policies. But a recent memorandum from the office of Peter B. Robb, the board’s new general counsel, may signal that the NLRB’s eight-year, pro-employee trend will soon decelerate.
Common problem with policies
Existing NLRB guidance at odds with sexual harassment recommendations
The U.S. Equal Employment Opportunity Commission (EEOC) has recently communicated its position that employers’ traditional harassment training needs to evolve, because it is simply not effective as-is.
One EEOC recommendation is that employers adopt civility training and work to proactively create a more respectful workplace rather than addressing negative (harassing) behaviors when they arise.
However, conduct policies like those instructing employees to behave “professionally” or in a “respectful” manner have regularly been among those polices that the NLRB has identified as overly broad over the past several years.
With signs of the board’s intentions to less aggressively enforce the tenets of the NLRA, employers may eventually find it less risky to implement policies that express an expectation that employees behave respectfully in the workplace.
In the past, the board’s concern with certain policies is that they could lead employees to believe they were restricted or even discouraged from exercising their rights to discuss terms and conditions of employment with one another. This is a right given to both union and non-union employees under the National Labor Relations Act (NLRA).
Policies that the board has deemed “overly broad” have been particularly targeted. Overly broad policies are those vague enough to create even the impression that an employee’s rights are restricted.
Policies commonly found to be problematic by the NLRB (and the particular areas of concern) are as follows:
- Social media use: Forbidding employees from mentioning or discussing the company on social media.
- Confidentiality: Overly broad provisions, which fail to limit what constitutes confidential information.
- Professional conduct: Overly broad provisions, which fail to limit what constitutes professional conduct.
- At-will employment: Indications that at-will employment cannot be modified since joining a union could change an at-will employee’s status.
- Photos/recordings in the workplace: Provisions forbidding photos or recordings entirely since collecting these could be part of unionizing efforts.
- Conflict of interest: Restricting employee’s rights to engage in protected activity that might be “in conflict with the employer’s interests.”
- Use of company email: Restricting use of company email for union organizing activities.
- Use of company mail: Restricting use of company mail for union organizing activities.
- Use of company logos, copyrights, and trademarks: Prohibiting employees’ protected use of company marks (employees may have the right to use these signs on picket signs, leaflets, and other protest material under the NLRA).
Just two weeks after being sworn in as the board’s new general counsel, Robb issued a memorandum that appears to pump the brakes on the NLRB’s recent intensity. In part, the memorandum rescinds guidance identifying the types of policies that the general counsel will consider as possible violations of the NLRA, including many listed in the previous section.
Though the memo does not identify what areas the board should pursue, the rescission suggests that the focus of the board will be reexamined and the intense focus on employers’ policy overreach will quiet.
Increased NLRB analysis
The memo identifies several types of charges that would be brought under the NLRA, which must now be submitted to the general counsel’s office for advice before the charges could be submitted to the board. These cases include those which:
- In the last eight years, overruled precedent and involved one or more dissents;
- Involve issues that the board has not yet decided; and
- The regional offices believe will be of importance to the general counsel.
The memo also directs regional offices to send cases involving many of the policy issues previously stated to the Department of Advice.
While the NLRB’s general counsel works in tandem with the five-member board, he is effectively the gatekeeper, deciding which cases go to the board, and influencing the regional offices and their attorneys.
While signs seem to be pointing toward a kinder, gentler NLRB (at least from employer’s perspectives), only time will tell whether (or how much) the board’s established policies and practices will evolve.
Katie Loehrke is a certified professional in human resources and an editor with J. J. Keller & Associates. Loehrke specializes in employment law topics such as discrimination, privacy and social media, and affirmative action. She is the editor of J. J. Keller’s Employment Law Today newsletter and its Essentials of Employment Law manual. For more information, visit www.jjkeller.com/hr and www.jjkellerlibrary.com.
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