The National Labor Relations Board continues to infiltrate the workplace even where there are no unions. Standard workplace policies — including those relating to employee conduct, protecting intellectual property, use of personal electronics, and conflicts of interest — are unlawful, according to a recent memorandum issued by the NLRB General Counsel. Basic contract and policy provisions requiring employees to maintain the confidentiality of business information, be respectful of others, and not send inappropriate emails may be unlawful in the NLRB’s eyes. In addition, the agency continues to expand the concept of “protected concerted activity” to cover employees engaged in social media posts outside of work and to challenge employer non-disparagement, arbitration, and “at-will” employment policies.
Employers must permit employees to use their e-mail system for unionization and other concerted activities during non-working time, according to the NLRB. And the agency has instituted so-called “quickie election” rules, which will have the practical impact of reducing the time for campaigns, thereby improving the unionization success rate.
On top of all this, the Board has also broadened its interpretation of “joint employer” to include franchisors of franchisees.
Where is the line and how can your company comply with the NLRA, while still protecting your business and providing a positive work environment? In light of these developments, it is critical for employers to review all of their employment, severance, and release agreements for compliance with the NLRA, as well as their employee handbooks and manuals. Moreover, employers should prepare now to anticipate union campaigns in light of the change in the timing of union elections.