For a number of years (i.e. the Obama era) the National Labor Relation Board (NLRB), the federal agency that is responsible for administering the National Labor Relations Act (the Act), has found numerous reasons to negate employer policies in employee handbooks as being in violation of employee rights under the Act. During that period, they found many employer policies to be “unfair labor practices”, in that they restricted an employee’s rights under the Act, whether they belong to a union or not.
According to the NLRB website,
the NLRA protects the rights of employees to engage in “concerted activity”, which is when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment. A single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action.
Many employers do not realize that they are covered by the NLRA even though their employees are not represented by a union. Also, along with that misunderstanding, they certainly do not expect that certain of their workplace policies can run afoul of the Act, even though they are neutral on their face, are not intended to and do not specifically ban “concerted activity” by employees.
As examples of the unanticipated reach of the Act, there have been several NLRB decisions which found employer policies to be a violation in these instances:
- Rules prohibiting “disrespectful” conduct
- Rules prohibiting the use of employer trademarks and logos
- No camera/recording rules
- Rules requiring employees to maintain the confidentiality of workplace investigations
Fast forward to the new administration. In a Boeing Company decision (December 2017) the Board established a standard for the lawfulness of workplace rules, attempting to clarify for employers what is permissible and what is not. In the Boeing case, the NLRB concluded that Boeing lawfully maintained a no-camera rule that prohibited employees from using camera-enabled devices to capture images or video without a valid business need and an approved camera permit. The NLRB explained that the rule potentially affected the exercise of NLRA rights, but that the impact was comparatively slight and outweighed by important justifications, including national security concerns. In the past, this policy may have been found to be too restrictive of employee rights.
The NLRB will now evaluate work rules under one of three categories:
- Lawful rules
- Case by Case rules – as it sounds these rules will be evaluated on a case-by-case basis. They are not clearly lawful or unlawful.
- Unlawful rules
Examples are provided in an NLRB General Counsel memorandum, which does add some clarity to what has been a pretty murky area of workplace law.
