I’m warning you now – this is going to be a long one.
I tried to stay out of it. I really did.
When I first heard that the National Labor Relations Board was targeting non-union companies for restricting employees’ social media activities, my ears piqued, for sure, but I decided to wait. See, I’m trying my best to be an Employment Law pragmatist, especially when it comes to the NLRB. I was taught by some great professors and mentors back when I was in law school that things at the Board change with the seasons, and sometimes unions are on top. It sucks, but you live with it, and focus your clients’ attention on how to avoid labor issues in the first place.
Rule #1 for being a good labor lawyer is you leave your politics at the door.
So, when the Board decided to make employers put up a new poster, it seemed like an odd move, but I figured: “That’s ok. They’re just catching up to nearly every other federal or state agency.” Advise clients. Move on.
And when the Acting General Counsel started issuing these crazy reports on how social media policies were invalid because they restricted the rights of workers to complain about their working conditions, I thought: “Well, that’s just the General Counsel – the Acting General Counsel, even. He contradicts himself in a bunch of places, and he doesn’t make the rules, anyway. This all feels like an overblown PR campaign. Let’s wait and see what the Board has to say about it.”
Well, the Board’s finally issued some opinions, and I’m ripping the duct tape off my mouth. It is now abundantly clear that the NLRB isn’t just interested in cases where employers discipline workers for discussing/complaining about the terms and conditions of their work, or other true attempts to silence or separate workers. No, the Board is after any piece of paper it can find that could, potentially, in some arguable way, have something to do with whatever it thinks is “protected concerted activity”.
Over the past few months, the NLRB has actually, no joke, called employers to account for policies that:
- prohibit employees from discussing ongoing HR investigations (Banner Estrella Medical Center)1
- make leaving work unannounced grounds for discipline (TT& W Farm Products)2
- protect confidential employee information (Flex Frac Logistics),3 and
- warn employees that defaming the company could, possibly, result in discipline. (Costco Wholesale Corp.)4
I had finally carved out the time to dig through these decisions this week when the Board smacked us with another one – Fresenius USA. Then, while I was writing the post, the Board did it again with a decision in Knauz Auto Group. Both of these decisions invalidate reasonable workplace policies, and in Fresenius, the Board protected an employee who lied to his bosses about writing derogatory comments that rise to the level of sexual harassment, simply because they were written in support of the local union.
I am still processing the absurdity of this onslaught of decisions, but I am sufficiently convinced that this isn’t some side show – the NLRB is tactically pursuing HR policies that shouldn’t be on its radar, and it’s doing it in a way that will just keep screwing employers who are legitimately trying to do the right thing.
If these policies were ham-handed, black-and-white prohibitions on certain behavior, where doing X will get you written up, and doing Y will get you fired, no questions asked, then the Board might have some space to get involved. A rule like that could reasonably keep employees from discussing pay or work conditions in a way that violated the Act. But none of these policies were written like that. Because nobody writes policies that concrete. Because management folks aren’t idiots, and we don’t actually want to restrict employees federally-protected rights.
But that’s neither here nor there to the Board. No, to the NLRB, any employer that dares to tell its workers not to make statements that “injure the image or reputation of the [Company]” is automatically in trouble, even where it’s in a section of the handbook called “Courtesy”, that explains that
“Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees.”
That’s from Knauz Auto Group. A case where, even though the Board held that the employee was legitimately fired, it went ahead and invalidated the policy that apparently had no bearing on the termination in question.
What the @#$& Happened?
Why has the Board moved in this direction? Simple: because HR policies exist everywhere, including the 89% of workplaces that don’t have unions anymore. And because HR policies can be analyzed and attacked and dissected even where an employer hasn’t actually done anything wrong (like in Knauz up there).
That’s right. At a time when half of the country thinks unions are no longer necessary, The NLRB is searching for some 21st-Century legitimacy. So what do you do? You reach out to those people, remind them that you protect their rights, too. Maybe create a web page to make your point.
Fine. Even that’s okay with me. The Board does protect those rights, so tell the world! I don’t care. What I do care about is when you start “invalidating” neutral, even-keeled policies on the off-chance that an employee may possibly think that the policy keeps them from exercising those rights.
Look, the NLRB is effectively the new guy when it comes to the non-unionized world, but its acting like there aren’t any other kids on the playground. These policies that it’s attacking have been developed over time to comply with the other federal and state agencies, who are protecting rights just as important5 than the right to concerted activity. Things like freedom from harassment, or defamation, or disclosure of medical or other personal information.
In a desperate attempt to stay relevant, the NLRB is steamrolling over every employment law that isn’t the NLRA, devaluing the importance of the EEOC, DOL and all the other state and federal agencies that have a vested interest in safeguarding the workplace, and leaving employers wondering how to possibly stay compliant amid completely contradictory statements. And what’s worse is that they don’t seem to care. Figure it out, folks! Not our problem.
So what’s an employer to do? Well, review your policies, and make sure they aren’t grossly one-sided, or based on language that obviously interferes with workers’ ability to talk or act in concert. And, somewhere in your handbook, make sure you put a disclaimer that nothing in your HR policies will affect employee’s Section 7 rights.6
But other than that, my advice is not to do anything. I am obviously disappointed with the Board’s tack here, but I still believe that the NLRB is too mercurial to base major HR decisions on. Plus, there’s no way courts will leave employers with this sudden schizophrenia of compliance. And, unlike the other agencies, where non-compliance can lead to high-value lawsuits, the worst the Board can do to you is tell you to rewrite your policy and put up a sign saying you’re really, really sorry.
That doesn’t mean this isn’t an important issue for employers to pay attention to. It is. If the Board continues this strategy in the coming years, it could become a headache for more and more employers, and (god forbid) a new tactic for unions looking for footholds of their own.
For now though, let the NLRB bluster, complain about it with guys like me, and just keep doing what you know is right to keep your employees and your company safe.