The unionized portion of the private-sector workforce has been steadily declining for decades. As such, many employers have given little thought to the National Labor Relations Act (NLRA) and what it means for their workplace. Over the past several years, however, the National Labor Relations Board (NLRB) has issued a number of opinions and other guidance which serve to remind nonunion employers and their employees that the NLRA covers nearly all private sector employees and provides them with numerous rights and protections. Among these is the right under Section 7 of the NLRA for employees to engage in concerted activity relative to employment issues for mutual aid and protection. Given the results of November’s election, there is no reason to believe that the Board will change course any time soon.
Following is a brief summary of some of the areas where the NLRB has taken on, and in some cases invalidated, common employment policies.
Virtually every nonunion employer considers the employment relationship to be “at will,” meaning the relationshipcan be terminated by either the employer or the employee at any time for any legal reason or even for no reason. The at-will relationship is often memorialized in employment applications and employee handbooks. Based on recent cases in which the Board alleged that an employer’s at-will policy interfered with employees’ Section 7 rights, the NLRB’s General Counsel has clarified how these at-will disclaimers can be phrased to avoid issues under the NLRA. As explained by the General Counsel, merely stating your at-will policy and requiring employees to acknowledge it is not unlawful nor is stating that the at-will policy cannot be modified except in writing by a particular employer representative. However, when the employer requires its employees to agree or affirm that the at-will policy cannot be modified by anyone in the organization, such an agreement or affirmation could interfere with the employees’ right to engage in Section 7 protected activity by signaling to those employees that they cannot band together (with or without a union) to attempt to modify their at-will relationship.
Confidentiality Policies and Employer Investigations
As with employment at-will, almost every employer has a policy prohibiting the disclosure of confidential information. In addition, when investigating complaints of discrimination or harassment, many employers have a blanket policy requiring the involved employees/witnesses to maintain the confidentiality of the information discovered or disclosed so as to preserve the integrity of the investigation process. The NLRB has recently found that when such policies are not carefully tailored to the specific situation, they also can violate Section 7. For example, when confidentiality policies broadly prohibit employees from disclosing employment-related information to others, including discussions of wages, benefits or employment terms/conditions, employees may not be able to exercise their Section 7 rights to discuss wage or employment conditions among themselves or lawfully disclose such information to others. As for employers who require or merely request that employees who make complaints or participate in the investigation of discrimination or harassment not discuss the matter with coworkers or others, such a policy may violate Section 7 because it prevents employees from joining together to discuss and address issues associated with discrimination in the workplace. The Board indicated that an investigation-related confidentiality requirement might be appropriate if the employer makes a specific finding that:
witnesses need protection;
evidence is in danger of being tampered with;
testimony may be fabricated; or
there is otherwise a need to prevent a “cover-up.”
Following the Board’s decision, an EEOC field office opined that broadly worded confidentiality policies regarding harassment/discrimination complaints or investigations may also violate Title VII of the Civil Rights Act of 1964 which allows employees to oppose unlawful discrimination by, for example, complaining to employer representatives or government agencies.
Off-Duty Access to Employer Property
For safety and security reasons, many employers prohibit off-duty employees from re-entering employer property without legitimate business reason or the employer’s permission. Once again, the NLRB recently found that when not carefully written or enforced, such a policy could violate the NLRA. According to the Board, a no-access policy will be upheld if:
it applies only to the interior of the employer’s facility or other work areas;
it is clearly disseminated to employees; and
it applies to off-duty employees seeking access to the premises for any employment-related purpose and not just to employees engaging in union-related activities.
Applying this standard, the Board has invalidated policies that prohibit off-duty employees from reentering the employer’s facility except for employer-sponsored events or for employer-related business and only with the employer’s permission because those policies effectively give the employer too much discretion and allow for inconsistent application. However, where the employer’s business is one that is open to the public, such as a bank, nursing home, hospital, restaurant, etc., an employer may not limit off-duty employee access to those “public” purposes since the employees are doing so for reasons unrelated to their employment (e.g., conducting banking business, seeking treatment, visiting patients, etc.).
This summary clearly shows that the NLRB is more than willing to flyspeck and set aside common employer policies where they could interfere with employee rights under the NLRA even if the policy has never been enforced in such a manner. Therefore, we recommend that employers review their policies and carefully tailor them to their specific situation, enforce their policies in a consistent manner and seek guidance where the situation is unclear.