Businesses frequently claim, “Our employees are our most important asset.” However, employees also can be a small or medium business owner’s biggest potential liability. Courts across the United States are awash in employment litigation: class actions for failure to pay overtime, claims of employment discrimination and harassment, workers’ compensation, whistleblowing, and so on. Astute business owners recognize these risks and take steps to minimize them—focusing on the human resources function, training of managers, and even the purchase of insurance to provide a means to defend against lawsuits by disgruntled workers.
As forward-thinking business owners recognize, prevention is key. However, business owners who consider themselves up-to-date, shrewd, and progressive may not be paying significant attention to the great-granddaddy of all labor laws in the United States: the National Labor Relations Act (the NLRA or the Act).
Many employers think that they do not need to be concerned about the NLRA because their employees do not belong to a labor union. Perhaps they don’t pay attention because in the United States as a whole, union membership is at an all-time low. According to the federal Bureau of Labor Statistics, in 2013 only 7.5 percent of private sector employees were represented by a labor union. This represents a dramatic decline over just the past few decades; for example, as recently as 1980, 27 percent of American workers were represented by a union.
However, even though only 7.5 percent of employees belong to a union, most employees in the private sector have rights under the NLRA. The Act does not just protect the rights of unions; it also protects the rights of employees, whether union-represented or not.
Notwithstanding the overall decline in union membership, the NLRA and its governing body, the National Labor Relations Board (NLRB), remain highly relevant today for both unionized and non-union workforces. This is, in part, because the membership of the Board has changed dramatically since the initial election of President Obama.
Members of the five-person NLRB are appointed by the President. Traditionally, three members are from the current President’s political party, two from the other major party. While George W. Bush was in office, a majority of NLRB members came from the Republican Party. The “Bush Board” issued decisions that maintained or increased the flexibility of employers to manage their workplaces. Today, after six years under the Obama administration, three Democrats constitute the majority. Many of the Bush Board’s and other earlier decisions have been overturned or are up for reconsideration, and today’s NLRB is highly activist, issuing decisions with a more pro-union and pro-employee bent.
Therefore, even owners of non-union businesses should be aware of the NLRB, its recent activity, and the proactive steps which can be taken to help avoid running afoul of today’s NLRA. Areas as commonplace as workplace investigations, email policies, and employee participation in social media are all implicated by recent NLRB decisions. Some of the most significant new decisions have involved non-union workplaces.
This article provides a brief summary of some of the more important developments in this area, along with a list of practical suggestions to help minimize risk. However, as readers of articles such as this might suspect, each factual situation faced by an employer is unique, and therefore this general discussion does not substitute for the advice of counsel.
The NLRA: Basic Protections for Workers
As a starting point, the Act protects workers who engage in “protected, concerted activity.” This includes conversations between coworkers about what is happening at the workplace. For example, a comment such as, “It would be great if we got a raise,” is protected; and it is concerted (as it involves more than one employee). An employer could not discipline an employee for making such a comment to a coworker.
Employers not used to dealing with a union may be unfamiliar with the contexts in which “protected, concerted activity” can arise. Remember: employees don’t have to be represented by a union in order to be protected by the NLRA. The Act protects the rights of employees to engage in concerted activity, and unions are only one means to achieve concerted action.
But protected, concerted activity is not always so easy to spot. In one recent dispute, an employee complained about a sexually graphic drawing in the workplace. She copied the image on a piece of paper, and asked coworkers to sign it. The NLRB found that this conduct was protected because the mere solicitation of support was “concerted” even if her coworkers did not agree with or join her cause.
Workplace Policies
Most employers have adopted employee handbooks or internal policies and procedures. Such policies, more frequently, have come under scrutiny from the NLRB at both unionized and non-union workplaces.
For example, employers are rightly concerned about their business reputation, and so many have adopted “anti-defamation” or “anti-disparagement” policies. One such policy provided: “Employees may not make disparaging or defamatory comments about the Company, its employees, officers, directors, vendors, customers, partners, affiliates, or our, or their, products/services.” The NLRB found that this policy was unlawful because it unduly restricted the ability of employees to discuss what the employees perceived to be the negative aspects of their working conditions.
As another example, in response to coverage in the media regarding employees’ “rants” on the internet about their workplaces, many employers have adopted “social media” policies. These policies may also seek to protect confidential information from public disclosure. One such employer policy provided the employees were not to “blog, enter chat rooms, post messages on public websites or otherwise disclose Company information…not already disclosed as a public record.” The NLRB found that this policy placed an unlawful restraint on an employee’s right to engage in protected, concerted activities.
Many employers have adopted policies limiting the use of electronic resources to business purposes only. One common employer policy provides that the company’s email system is to be used for company business only; any non-work use of the email system is prohibited. The Bush Board found that such policies were lawful and enforceable. It concluded that an email system was “Company property,” similar to bulletin boards, photocopiers and telephones, and therefore employers could limit the use of email to work-related purposes only. Specifically, employees could be prohibited from using company email to try and organize a union.
However, the Obama Board recently reversed this decision. Today’s Board concluded that employers must open their corporate email systems to employees during non-work times for non-work communications, including those protected by the NLRA. The Board stated that email is different from a photocopier, telephone, etc. because its “flexibility and capacity” make its non-work use less costly and disruptive than non-work use of other employer property.
The Board further stated that email is a pervasive means of communication at work, which is a new “natural gathering place” where employees congregate to share interests. Finally, the Board noted that, with the dispersed configuration of workplaces and the expansion of remote work, email is now “the predominant means of employee-to-employee communication.” The Board therefore concluded that restriction on the use of email inherently interferes with the rights of employees protected by the NLRA.
Business owners should note that this decision is not yet final; it is subject to appeal. Also, the decision does not require employers to allow non-work use of email systems during working time, or to open their email systems to outside union organizers, or to give access to email to employees who do not need access to do their jobs.
In an attempt to make workplace policies legal, some have included a “savings clause.” One such clause provided: “Please note that the Company will not construe or apply these guidelines in a manner that improperly interferes with or limits employees’ rights under any state/federal laws, including the NLRA.” Unfortunately, the NLRB’s Division of Advice concluded that this was insufficient to “save” an otherwise unlawful policy. Specifically, it noted, “A general disclaimer is insufficient where employees would not understand from the disclaimer that protected activities are in fact permitted.”
Many other workplace policies today are subject to scrutiny by the Board; a careful and thorough review of policies and handbooks is recommended to ensure compliance. With this knowledge in hand, small and medium-sized business owners can and should undertake a review of workplace handbooks and policies. For example, search for words such as “communicate,” “confidential,” and “coworker.” Any policy that arguably restricts the ability of employees to communicate about workplace matters is subject to challenge, and it should be revised and updated.
Internal Investigations – Asking for Confidentiality
Employers today can expect to conduct “internal investigations” in response to a variety of employee complaints. For example, if an employee complains about sexual harassment by a coworker, an employer has a legal duty to promptly investigate and reach a conclusion. This is an important part of an employer’s duty to maintain an effective anti-harassment policy and to prevent prohibited harassment in the workplace.
To preserve the integrity of an investigation, many employers either ask or require that employees who participate in the investigation keep the matter strictly confidential. An employer might wish to impose discipline on employees who breach the obligation of confidentiality. However, such an approach can violate the NLRA, as communication between coworkers regarding matters under investigation can constitute “concerted activity.”
Recently, the NLRB concluded that it is a violation of the Act to automatically require that employees keep confidential their participation in internal investigations. The Board concluded that, in many cases, employees should be allowed to discuss such matters with their coworkers. Even where the employer merely “recommended” confidentiality, this can be found to violate the Act.
As with employer policies, a “savings clause” may not save the day. In one case, the employer’s confidentiality agreement included the following statement: “I acknowledge and agree that this agreement does not deny any rights provided under the National Labor Relations Act to engage in concerted activity….” This was found to be insufficient; the confidentiality requirement still violated the NLRA.
All is not lost, however. The NLRB has stated that a confidentiality policy in the context of an internal investigation may be enforceable if it is imposed only on a case-by-case basis, after a specific finding by the employer that confidentiality is needed to preserve the integrity of an investigation. This could include such matters as protecting witnesses from harassment, intimidation, and retaliation, keeping evidence from being destroyed, ensuring that testimony is not fabricated, and preventing a cover-up.
Internal Investigations – Questioning Witnesses
In questioning witnesses during an internal investigation, care must be taken not to inquire about protected, concerted activities. In one recent and potentially troubling decision, the Board found a violation of the Act resulting from the employer’s questioning witnesses in response to an internal “garden-variety” sexual harassment complaint.
The dispute involved a cashier at a grocery store who complained about a graphic drawing in the workplace. Because cashiers were not permitted to take photographs in the workplace, she copied the image on a piece of paper and asked three coworkers to sign the document. They did so. A supervisor then questioned the employees about why they signed the document, and the Human Resources Manager questioned the complaining employee about why she had asked the others to sign.
As indicated above, the case made its way to the NLRB, which found that the complainant’s soliciting two coworkers to sign her hand-drawn reproduction of the message was protected under the NLRA. Significantly, the Board found that the complainant’s mere solicitation of support from her coworkers was “concerted” even if her coworkers did not agree with her or join her cause, and regardless of whether they had signed or refused to sign the paper.
Interestingly, while the Board found that the complainant was engaged in protected, concerted activity, the Board also held that the company did not violate the NLRA when it asked questions about the coworkers’ signing of the paper. The Board concluded that in the particular circumstances of this case, those questions and instructions were narrowly tailored to the company’s need to conduct an impartial and thorough investigation.
Even though the employer prevailed in this case, extreme caution is advised in this area: any time an investigation involves more than one employee, there is the potential to stray into unlawful interrogation regarding protected, concerted activities.
Employee Discipline
A very recent decision from the NLRB, again involving a non-union workplace, highlights the importance of careful consideration of whether employees who violate work rules will later allege that they were disciplined for engaging in “concerted activity.”
In that case, an employee became dissatisfied with the method by which his supervisor was making deductions from his paycheck after he found he owed back taxes to the state. He logged on to Facebook and started a discussion—which several coworkers joined—indicating they, too, believed they had taxes improperly withheld. Even a customer joined in, sympathizing with the employees. The postings became more graphic, involving profanity, and eventually included a statement that the supervisor was an “a**hole.” Another employee “liked” that comment. Eventually, workers were terminated for making disparaging and defamatory comments regarding the company.
The NLRB ordered reinstatement of the employees, along with an award of back pay, concluding that the employees had been discharged for engaging in protected, concerted activity. The Board also found that one employee’s “like” of another’s comment was sufficiently meaningful “so as to rise to the level of concerted activity” under the NLRA.
Each contemplated disciplinary action should be scrutinized in advance to evaluate a possible claim of infringement of rights under the NLRA.
New Union Organizing Rules
One final area of caution for non-unionized employers: the Board recently adopted new rules which speed up the union election process. These rules make it more challenging for Employers to tell “their side of the story” when facing a Union organizing drive.
Practical Suggestions
What’s a non-union employer to do? Several responses are suggested. First, focus on your front-line supervisors. Supervisors make mistakes like the rest of us, for example, by playing favorites, not listening, or trying to motivate employees by telling them, “because I said so.” Mistakes like these lead to litigation, including unfair labor practice charges under the NLRA. Business owners should identify newly-promoted supervisors and make sure they understand their roles and have the support they need. “Problem” supervisors (most businesses have them) also should be identified and provided training and counseling. If these supervisors fail to improve, a strategy should be developed to remove them from their supervisory roles.
Second, evaluate your human resources function. Is the company devoting enough time and energy to this function? Are additional resources appropriate? A highly functioning human resources department is critical to success in business today.
Third, employee handbook and employer policy language should be reviewed. A particular focus should be placed on any policies that could be seen as restricting employees’ ability to communicate with each other.
Fourth, supervisors and managers should be provided training regarding employee rights protected by the NLRA so that they can spot potential issues and obtain appropriate assistance when needed.
Fifth, each internal investigation should be considered and planned out separately; a blanket, “one size fits all” approach to investigations is no longer appropriate. Consideration must be given regarding possible confidentiality and questioning of witnesses when more than one employee is involved.
Sixth, employee discipline should be given an extra-careful review. Just because discipline “worked” in a prior situation does not mean that you will achieve the same result today.
In conclusion, today’s activist NLRB is looking for new ways to expand the reach of the NLRA into non-union workforces. To succeed in business, you need employees. However, those employees are protected by the NLRA, even if they have not chosen to form a union. So, to truly succeed in business today, an employer must understand and give due respect to the legal rights of its workers. Those rights include the right to engage in protected, concerted activities. Even in a non-union workplace, business owners must have a basic understanding of the Act and effectively apply that knowledge in managing their workforces.
