By Kevin A. Fritz and Craig B. Simonsen
Would your company’s employee handbook pass a National Labor Relations Board (NLRB) social media review and investigation?
The U.S. Chamber of Commerce highlighted some troubling notions in a report issued last week: “Theater of the Absurd: The NLRB Takes on the Employee Handbook” (Chamber Report). The Chamber Report notes that “through a series of decisions and official guidance, the National Labor Relations Board (NLRB) has undertaken a campaign to outlaw heretofore uncontroversial rules found in employee handbooks and in employers’ social media policies—rules that employers maintain for a variety of legitimate business reasons.” When it comes to protecting concerted activity, the NLRB has been anything but consistent in its application of the law and subsequent decisions.
In the realm of social media policies alone, the NLRB’s General Counsel’s Office issues Advice Memos that detail the results of “investigations in dozens of social media cases.” The Advice Memos claim to show many cases where “some provisions of employers’ social media policies were found to be overly-broad” and unlawful. But the Chamber Report disputes the NLRB findings, noting that “unfortunately, in recent years the NLRB has changed. Rather than serving as an impartial referee, it has become dominated by a decidedly pro-union majority. These activist Board members have disregarded the overarching objectives of the NLRA and disrupted the careful balance that the Board has traditionally sought.”
And, more recently the NLRB’s General Counsel’s Office released its guidance memorandum to “help employers” draft compliant handbooks: “Report of the General Counsel Concerning Employer Rules,” GC-15-04 (March 18, 2015). The guidance sets out that the NLRB considers a policy or rule as unlawfully interfering with employees’ rights under the NLRA where an employee would “reasonably construe” the policy or rule to prohibit protected activity.” The Chamber Report indicates that the guidance “goes on to provide examples of lawful and unlawful employer policies. Unfortunately, many of the examples provided confuse matters even more given the similarities between that which is legal and that which allegedly is not.”
Our readers may appreciate the complexity through a real life example: Consider an NLRB decision where a technician had been warned by his employer three times over a five-month period for violating safety rules. The technician was finally fired after being seen on a ladder working without protective headwear, safety glasses or gloves. In November 2012, the NLRB found that the employer had a legitimate reason for firing the technician, dismissing his claim that he had been retaliated against for union activity (Dish Network Corp., N.L.R.B. A.L.J., No. 16-CA-62433 (11/14/12). The Chamber Report notes that while it didn’t take issue with the NLRB’s core finding in this case, it observed that the Board then went a step further, finding unlawful three provisions of the employer’s employee handbook that “had nothing to do with the underlying case.” The motivation behind the NLRB’s decision is certainly concerning.
As an employer, it is not easy to maneuverer in this “legal” space. From the NLRB finding that policies prohibiting “negative comments about fellow team members” to those which subject one to disciplinary action for “disclosure of proprietary information” as being illegal, employers are right to feel challenged and perhaps even intimidated by the rampage an sporadic nature the NLRB has taken. Employee handbooks are an important source for you to communicate your company’s policies and procedures. Given this current state of uncertainty and “decidedly pro-union majority,” be sure that your company materials are up-to-date and able to withstand a government inspector’s review.
Those with questions or concerns about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of the Labor & Employee Relations, Social Media Practice Group, or Workplace Policies and Handbooks teams.