There has been no slow down to the National Labor Relations Board’s attention to employer handbook policies that purportedly can discourage “protected concerted activity.” We previously suggested five handbook provisions to update, but the continuous wave of Board decisions has expanded what language the NLRB considers to have a “chilling” effect on employees exercising their Section 7 rights to communicate about their wages, hours, and other terms and conditions of employment. As with our previous post, this is true even for employers without a unionized workforce. In light of the Board’s continued focus, the following handbook policies may deserve another look:
- Arbitration Agreements. The NLRB takes the position that agreements that require employees to waive class or collective action in favor of arbitration violate the NLRA, whether they are voluntary or not. Often part of a larger dispute resolution framework that may require employees to utilize an ‘open-door’ policy, these agreements are often interpreted to preclude (or appear to preclude) bringing issues to the NLRB. Noteworthy, the U.S. Federal Courts of Appeals are split on the issue. The Fifth Circuit has twice held that these agreements are enforceable, so employers in Texas, Louisiana, and Mississippi are likely protected. But the Seventh Circuit recently held that such agreements do violate the NLRA. Thus, employers in Illinois, Wisconsin, and Indiana should take note.
- Social Media. Social media is treated similarly to other communications between employees, so employers should be careful to craft policies that are not overbroad or appear to limit an employee’s Section 7 rights (e.g., courtesy policies or limiting who employees can friend). However, it’s fine to make clear that employees can’t suggest their viewpoint reflects the company’s, or create posts expressing their own opinions through a company-run platform. Employers may also consider clarifying that it won’t take action against employees for sharing their political beliefs about why one candidate is better for workers than another, especially in light of the current election cycle.
- Positive Work Environment. The NLRB has long supported employees’ rights to argue with each other about unions, the company, and the terms and conditions of their employment. The NLRB recently held that a handbook provision requiring employees to maintain a “positive work environment” and seek “effective working relationships” with clients and co-workers was too ambiguous and could discourage employees from exercising their Section 7 rights.
- English-Only Policies. While the EEOC allows for such policies when it’s a “business necessity,” the NLRB has found that provisions could be overbroad when requiring employees to use only English when near customers, conducting business with co-workers, or while on duty. The Board found that the lack of clarity around the time and location of the language ban could discourage employees from exercising their Section 7 rights in their native language.
Specific and clear language is essential when crafting policies, as the NLRB usually finds overbroad language as the culprit in potentially influencing employees to not exercise their rights. In making changes to policies, however, employers should also be aware of current union activity to ensure the act of alteration itself isn’t construed as reactionary. In one recent case, after an employer altered its solicitation policy, the NLRB ruled it was a negative reaction to an on-going union campaign. Although a policy may be legal, the change itself could violate the NLRA.