You may want to include a review of your employee handbook in your “spring cleaning” this year.
Employee handbooks and work policies have been at the forefront of the National Labor Relations Board’s mind recently. The Board has held that a work rule may violate Section 8(a)(1) of the National Labor Relations Act if the rule has a “chilling effect” on employees’ Section 7 activity – whether it be union activity or simply discussing the terms and conditions of employment with one another. According to the Board, a work rule not only violates the Act if it explicitly restricts this protected activity, but also if it: (1) can be reasonably construed by its language to prohibit protected activity; (2) was promulgated in response to union or other protected activity; or (3) was actually applied to restrict the exercise of the protected rights.
Earlier this spring, the Board’s General Counsel issued a detailed report providing examples of unlawful policies as well as their lawful counterparts. The report discusses:
- Confidentiality Rules
- Rules Regarding Employee Conduct toward the Company and Supervisors
- Rules Regulating Conduct Towards Fellow Employees
- Rules Regarding Employee Interactions with Third Parties
- Rules Restricting Use of Company Logos, Copyrights, and Trademarks
- Rules Restricting Photography and Recording
- Rules Restricting Employees from Leaving Work
- Conflict-of-Interest Rules
The full text of the report can be found at: http://www.nlrb.gov/reports-guidance/general-counsel-memos.
In light of this report, we recommend that you carefully review all of your policies, with particular emphasis on the ones listed above.
This week, the U.S. Chamber of Commerce and several business trade groups announced that they jointly filed a complaint in federal court against the National Labor Relations Board (NLRB), seeking to strike the Board’s new “ambush” election rule that shortens the period between the filing of a union election petition and the election itself. The NLRB adopted the rule on Dec. 12, 2014 in a 3-2 vote. If not overturned, the rule is set to go into effect on April 14, 2015. See our previous post here.
The complaint alleges that the new rule violates the National Labor Relations Act, the Administrative Procedure Act, and employers’ free speech and constitutional right to due process. Read the press release here.
Joining the Chamber in the lawsuit are the Coalition for a Democratic Workplace (CDW), National Association of Manufacturers (NAM), National Retail Federation, and Society for Human Resource Management (SHRM). Worth noting is that this is only the third time SHRM has challenged a federal regulation in court.
The National Labor Relations Board has issued final rules that are intended to speed up the union election process. These new rules will take effect on April 14, 2015. Read more about the final rule in the Federal Register.
The new election rules are being heralded by organized labor and decried by many in the business community. The new rules compress the timeline between petition and election, give unions access to more information about employees, set up new employer procedural requirements, and limit hearing issues and appeals that may be raised before an election. The end result is that the timeframe from petition to election will be significantly shorter, which is generally viewed as an advantage for unions.
Unless these rules are overturned, employers are well-advised to take precautionary steps to prepare for a union organization effort, rather than waiting for a representation petition to be filed.
Today, the National Labor Relations Board held that employees have a right to use their employer’s communications systems – including email – for protected activity during non-working time, unless the employer prohibits all non-business use. In so holding, the Board overruled its 2007 precedent-setting decision on the same issue.
“Consistent with the purposes and policies of the act and our obligation to accommodate the competing rights of employers and employees, we decide today that employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems,” Thursday’s decision said.
The wording here is important, and indicative of the division among the NLRB on this issue, as it specifically applies to workers who have been granted access to employer’s email systems, and offers an “out” for companies that ban non-work-related use of email. Of course, most employers permit some non-business use of communications systems, and so this carve-out is a narrow one.
The case is Purple Communications Inc. and Communications Workers of America, AFL-CIO; case numbers 21-CA-095151, 21-RC-091531 and 21-RC-091584 at the National Labor Relations Board. Read the entire case history here and view our previous posts on this issue by following the “Related” links below.
The National Labor Relations Board is drawing a lot attention from the media for its recent crackdowns on companies’ social media policies, but the NLRB has increasingly been scrutinizing other common policies in non-union companies’ employee handbooks. Guidelines on keeping information confidential, being courteous in the workplace, not disparaging the company or supervisors, and resolving disputes are all under the NLRB’s microscope. The key, in the NLRB’s eyes, is whether the policy would limit employees’ right to “engage in concerted activity” (which includes everything from two employees discussing the workplace to a group of employees forming a union) or suggests that employees can’t engage in collective bargaining. So, for instance, the NLRB has taken issue with confidentiality policies that prohibit the sharing of information regarding other employees because sharing employee information is a key step in organizing. Similarly, the NLRB has taken action against non-union companies that prohibit employees from disparaging co-workers or the company, because employees have a right to share their grievances about the workplace. There is no question that the NLRB is continuing to assert itself in non-union workplaces. Employers can look forward to more NLRB cases claiming that standard handbook policies violate the National Labor Relations Act. If you haven’t recently reviewed your employee handbook and policies with an eye toward these issues, it makes sense to do so before you find yourself in the NLRB’s crosshairs.