In light of recent National Labor Relations Board (NLRB) scrutiny, certain long standing policies in employee handbooks will need to be altered or removed completely. The primary risk with having some of these policies in place is that they will be in violation of the National Labor Relations Act (NLRA), the law that governs employee concerted activity in many workplaces. Section 7 of the NLRA provides that: “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The NLRA applies to all employers with two or more employees and protects the communications of all employees.
What exactly is a Protected Concerted Activity (PCA) under the NLRA? It is any communication or activity between two or more employees with the purpose or intention of improving or discussing work related conditions or benefits.
- Discussions regarding wages and benefits
- Complaints about safety issues or hazardous working conditions
- Requests for raises, benefits, or a different schedule
- Social media posts about long hours, low wages, or hostile work environment
Employers cannot take action against an employee who participates in PCA. This includes discipline, termination, pay cut, and other retaliation.
The above examples seem extreme and employers have had policies about a lot of these items in place for decades. The issue is that the NLRB is currently targeting employers and conducting investigations on a very regular basis. Here are the items they are finding unlawful in employee handbooks:
- Inflexible At-Will Policy – if this policy states that the at-will employment relationship cannot be modified or altered in any way, it would violate the NLRA because employees have the right to seek to change their at-will status.
- Overboard Confidentiality Policies – Employers have a legitimate interest in seeking to restrict the improper use or disclosure of their confidential or propriety information, however, employees cannot be prohibited from discussing or disclosing their own personal employment terms (including wages and benefits).
- Policies that Prohibit Negative or Adverse Comments – Be extremely careful when drafting your social media policy. This is an area of keen interest for the NLRB.
- Firing for employee comments on Facebook are being found unlawful.
This is just a short list of the many items under scrutiny by the NLRB. We recommend that you have your employee handbook reviewed for NLRB violations. Please contact us if you need help in this area.