The National Labor Relations Board (NLRB) continues to find garden-variety employer policies to be unlawful because they restrict or interfere with employee rights protected by the federal labor law, the National Labor Relations Act (the NLRA).
As we have pointed out before, the NLRA protects virtually all nonsupervisory employees—not just those represented by a union. One of the rights protected by Section 7 of the NLRA is an employee's right to engage in "concerted activities for . . . mutual aid or protection." These "Section 7 rights" are very broad, and protection by the NLRA extends to many forms of employee activities. In turn, any action by an employer that improperly restricts or interferes with any of those activities is unlawful. Even an unwritten rule can be unlawful—for example, telling an employee that he or she cannot do something or must stop doing something the employee is legally entitled to do.
One of the most common ways these issues arise is when an employer disciplines an employee for engaging in conduct protected by Section 7. For example, suppose the employer has a written rule prohibiting employees from discussing their wages. If the employer discharges an employee for violating that rule, the discharge would be illegal because the rule itself is illegal—employees have a Section 7 right to discuss their wages. The remedy would be to reinstate the employee, make him or her whole for all lost wages and benefits, rescind the rule, and promise never to do it again—undertakings that would have to be publicized throughout the workplace with large official posters placed wherever employee notices are typically posted. The notice would also have to be posted on the employer's intranet and disseminated via email to all employees if the employer uses such media to communicate with the workforce.
Another way these issues arise is when a union is attempting to "organize" a group of employees—trying to convince them that they should select the union to represent them in dealings with their employer. An unlawful rule can be grounds for a union to obtain a second election even if it has already lost the first election, and even if the rule was never actually enforced against protected activities. Also, the union can challenge a rule directly and force the employer to change it and post a remedial NLRB notice proclaiming the employees' right to engage in union activity. Having accomplished that, the union can brand the employer a lawbreaker that has been called on the carpet and made to repent by the union seeking to improve the lot of the downtrodden workers, thereby demonstrating that employees need the union's protection. In short, nothing good comes from unlawful rules.
What sort of rules are we talking about? In general, there are three categories of unlawful rules: (1) those adopted in response to union activity even though they would otherwise have been lawful; (2) those that expressly restrict Section 7 activities; and (3) those that, although not expressly mentioning Section 7 activities, would reasonably be understood to prohibit such activities.
The first category—rules adopted in response to union activity—includes access, solicitation and distribution rules that can be lawfully adopted only before there is any sign of union activity. This demonstrates how important it is to have lawful rules in place before any union activity starts. Failing to do so then may prevent an employer from adopting them later.
Examples of the second category of rules—those expressly prohibiting Section 7 activities—include rules that prohibit such things as:
- Discussing wages and benefits.
- Soliciting employees about nonwork-related issues at work.
- Distributing literature in nonwork areas.
- Striking or picketing.
- Joining unions.
Determining the scope of the third category is more challenging. The question is whether the rule would reasonably tend to discourage employees from exercising their Section 7 rights. Although the rule must be given a reasonable reading in context, ambiguities are construed against the employer. If a particular rule is overly broad, merely maintaining it is unlawful, even if it has never been enforced. Examples of rules in this category include the following:
- Prohibiting the disclosure of information from the company's email, instant messaging and phone systems to unauthorized persons.
- Prohibiting the disclosure of "confidential or sensitive information concerning the Company or any of its employees" without approval.
- Prohibiting the disclosure of "information from an employee's personnel file" without approval.
- Directing employees to "Voice your complaints directly to your immediate supervisor or to Human Resources through our 'open door' policy."
- Prohibiting "making false, vicious, profane or malicious statements" toward or concerning the company or any of its employees.
- Prohibiting "negative conversations about employees or managers."
- Prohibiting "performing activities other than Company work during working hours."
- Routinely instructing employees involved in an investigation not to talk with other employees about the substance of the investigation.
The take away is that employers should carefully review their rules of conduct—particularly their confidentiality/nondisclosure rules—to ensure that they pass muster under the NLRA.
© 2011 Perkins Coie LLP