The NLRA: What You Don’t Know Could Hurt You!
Section 7 of the National Labor Relations Act (NLRA) gives both unionized and non-unionized employees the right to act together to try to improve their pay and working conditions. These protections are known as “protected concerted activity.”
In recent years, the National Labor Relations Board (NLRB), the agency that enforces the NLRA, has decided a number of cases regarding the circumstances under which employer policies may violate Section 7 rights. The NLRB has found that employer policies and practices violate the NLRA if they:
- Explicitly restrict Section 7-protected activities (e.g. expressly bar the discussion of wages and working conditions with co-workers and third parties);
- Would reasonably be construed to prohibit Section 7-protected activities;
- Are established in response to union activity; or
- Are applied to restrict the exercise of Section 7 rights.
The following are examples of policies that have been scrutinized by the NLRB:
The NLRB recently affirmed the decision of an administrative law judge who found an employer’s no-gossip policy violated the NLRA (see NLRB Case Number 10-CA-093934). The policy stated that employees may be subject to discipline for, among other things, talking about a person’s professional life without his or her supervisor present; sharing information that could injure a person’s credibility or reputation; and making negative or disparaging comments or criticisms about someone. The judge concluded that the policy was overly broad and could reasonably be construed to prohibit employees from discussing or complaining about working conditions.
The rapid rise in social media use has prompted many employers to develop policies limiting the use of social media during work time and/or prohibiting employees from tarnishing the company’s reputation through social media postings. The NLRB has taken the position that an employee’s use of social media to protest unfair working conditions (e.g. unequal pay, harassment, etc.) may be considered protected concerted activity. Therefore, action taken against an employee who engages in such activity would likely be considered a violation of the NLRA (see the NLRB’s Office of General Counsel Report, May 2012).
The NLRB has consistently found that policies that prohibit employees from discussing their pay with co-workers violate the NLRA. The NLRB has rejected arguments from employers that this type of policy is necessary to avoid discord in the workplace.
Employers generally are permitted to prohibit solicitation on their premises by non-employees, as long as the policy is applied in a nondiscriminatory manner. A blanket policy that bars all solicitation by employees, however, may violate the NLRA, particularly if it bans union-related solicitations during non-work hours. Non-solicitation policies therefore must be carefully worded and consistently applied so that they are not construed to apply to employees during non-work hours or prohibit protected activity.
Employers should consider reviewing their own policies and practices to determine whether changes should be made in light of NLRB guidance. Consult legal counsel as necessary.
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