The NLRA’s Impact on Non-Union Employers
by Monica F. Ramirez and Mark Simon
Many employers mistakenly believe that the National Labor Relations Act (NLRA) does not apply to their businesses because their employees have no established union. But the NLRA applies to almost all private employers regardless of whether there is a union presence. Section 7 of the NLRA grants employees several rights including the right “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .” An employer violates Section 8(a)(1) of the NLRA when they “interfere with, restrain or coerce employees in the exercise of the rights guaranteed in Section 7.”
An employee is considered to be engaged in “concerted activities” when the employee acts for the purpose of benefiting a group of employees. The National Labor Relations Board (NLRB) has ruled that non-union employers commit an unfair labor practice by maintaining employee policies or handbooks containing confidentiality policies that restrict the ability of employees to discuss their wages. Other potential NLRA violations found in employee handbooks include requiring an employee to follow the company’s grievance policy, restricting employees from making negative statements about the employer, and prohibiting employees from soliciting union information or distributing it to other employees.
If an employer terminates or disciplines an employee for defying one of these company policies, the employee may bring a charge against the employer. This article addresses how a non-union employer can structure its policies to avoid violating the NLRA.
The NLRB begins its inquiry into whether an employer’s policies violate the NLRA by determining whether the rules would reasonably tend to chill employees in the exercise of their Section 7 rights. An employee may charge an employer with an unfair labor practice if the employer maintains overly broad policies that restrict employees from discussing certain matters at work.
For instance, an employer violated the NLRA when a supervisor told employees to stop gossiping about a potential sexual harassment claim. Ellison Media Co., 344 NLRB 1112 (2005). Similarly, where an employer’s confidentiality policy could reasonably “chill” an employee’s ability to discuss wages with other employees, an NLRA violation under Section 7 existed even though the employer never enforced this policy. Cintas Corp. v. NLRB, 482 F.3d 463 (D.C. Cir. 2007).
Email is another area where employers may commit an unfair labor practice. For example, an employer violated the NLRA by arbitrarily enforcing its policy of prohibiting employees from using company email for non-job-related solicitations. Guard Publ’g Co., 351 NLRB 1110 (2007). An employer has the right to control its property and prohibit employees from using company email for non-work-related communication. But if an employer allows employees to send non-work-related emails about outside groups or organizations, such as the sale of Girl Scout cookies or beauty products, the employer must allow communication about work conditions or union activity. Essentially, if an employer maintains an email policy, the employer must not discriminate in enforcing that policy.
Because of the prevalence of technology in society, many employers now have social media policies in their handbooks. Recently, the NLRB brought a charge against an employer who terminated an employee for posting disparaging statements about her supervisor on Facebook. Am. Med. Response of Connecticut, Inc., NLRB Case No. 34-CA-12576. The NLRB deemed the employee’s posting a protected, concerted activity. The employer maintained a “Blogging and Internet Posting Policy” that barred employees from “making disparaging, discriminatory, or defamatory comments when discussing . . . the employee’s superiors.” The parties reached a settlement in February so the case leaves many unanswered questions. But it is evident that employers who wish to avoid an unfair labor charge should evaluate their social media policies.
In drafting its confidentiality policy, an employer should specifically focus on how it operates and not include any language regarding wages or working conditions. Additionally, the employer should simply state that nothing in the employee handbook prohibits employees from discussing the terms and conditions of their employment. All employers should be advised to review their current policies. In most cases, a non-union employer can prevent action by the NLRB by rejecting boilerplate language and carefully drafting its employee handbook.
Monica F. Ramirez graduated from SMU Dedman School of Law in May. She can be reached at firstname.lastname@example.org. Mark Simon, a partner at Scheef & Stone, L.L.P., practices labor and employment law. He can be reached at email@example.com.