The National Labor Relations Act (“NLRA”) applies to almost all private employers, regardless of the presence of a union. Section 7 grants employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection …,” among others. It is a violation of the NLRA (Section 8(a)(1)) for an employer to “interfere with, restrain or coerce employees in the exercise of the rights guaranteed in Section 7.” An employee generally is considered to be engaged in “concerted activities” when he or she acts for the purpose of benefiting a group of employees.
The question whether employment policies, especially those of non-union employers, infringe on employees’ Section 7 rights has come under intense scrutiny by the National Labor Relations Board and its General Counsel, the Board’s prosecutor. The NLRB has examined whether employers’ policy language, on its face, could “reasonably” be read as restricting an employee’s right under the NLRA to engage in protected concerted activity. Following are some potential policy pitfalls and ways to avoid them.
Negative or Disparaging Comments
Often found in social media policies, language that prohibits employees from making “disparaging comments about the company” or “statements that damage the company or defame any individual’s reputation” can reasonably be read as overbroad and infringing on Section 7 rights. Instead, the employer should consider focusing the policy on particular issues, e.g., on such plainly egregious conduct as prohibited discrimination or harassment, obscenity, and threats of violence.
Confidentiality and Non-Disclosure Policies
A policy that requires absolute confidentiality or non-disclosure can be suspect as employees reasonably can believe they are prohibited from discussing wages or other terms and conditions of employment. In addition, suspicion can befall a policy asking employees to keep internal human resources or legal department investigations confidential. A confidentiality requirement should be justified on a case-by-case basis. For example, in a sexual harassment investigation, a confidentiality requirement may be needed to protect the victim; in a theft investigation, confidentiality may be needed to ensure that evidence is not destroyed or testimony fabricated. Confidentiality and non-disclosure policies should be focused on specific categories of information (e.g., trade secrets and specific types of proprietary business information) so that they could not be reasonably read as infringing on Section 7 rights.
At-Will Employment Policies
At-will employment policy language also can come under scrutiny where it does not allow for the possibility that at-will status could be changed through a collective bargaining agreement. This problem can be alleviated with language saying that the employer’s representatives are not authorized to change the employee’s at-will status, but acknowledging that the at-will policy may be changed by written agreement.
A social media policy’s “savings clause” stating the policy would “be administered in compliance with applicable laws and regulations (including Section 7 of the National Labor Relations Act)” has been found insufficient to cure ambiguities in the policy’s overbroad rules. Therefore, employers should focus on policy language rather than rely on a disclaimer to prevent an overbroad reading.
Employers should consider reviewing their workplace policies regularly and assessing whether those policies could “reasonably” be read to restrict employees from communicating with their fellow workers or third parties about wages, hours, and other terms and conditions of employment.