Legal danger zone No. 3: The NLRB and your employee policies

Why the NLRB is out to get you, and how to protect yourself

Have you had your policies reviewed in the last few months for possible National Labor Relations Act, NLRA, violations? If not, this is a massive area of liability you will want to address immediately. In fact, if you have access to a time machine, we recommend you tackle this issue yesterday!

Why is this so important? The NLRA exists to protect employees’ rights to discuss and attempt to improve their wages and working conditions. But from social media policies to confidentiality requirements, employee handbooks are constantly being found in violation of the NLRA, even if the employer was not trying to intentionally restrict or harm employees’ protected rights.

The National Labor Relations Board, NLRB, is the big scary government agency that interprets and enforces the NLRA. In the day-to-day lives of employers, the NLRB functions much like the bogeyman. It often induces nightmares, and even more likely, results in investigations, fines, costly settlements, damages, and attorney fees.

What attracts the NLRB bogeyman? Social media, Internet use, and confidentiality policies, to name a few

Employers are in danger from the NLRB no matter what their practice size, and it doesn’t matter whether one's employees are unionized or not. We’ve seen the NLRB go after dental employers with less than 10 employees, and they require nothing more than suspicion or a complaint to begin an investigation. What does matter is the strength of your policies and whether you’ve had them reviewed by an attorney or expert.

What types of employee policies make the NLRB want to sink its fangs (and lawyers) into you? Here are a few examples of this bogeyman’s favorite areas:

• “Do not discuss company, patient, or employee information outside of work.”

• “Do not make any ‘insulting, defamatory, libelous, slanderous, or discriminatory comments about [the employer], its patients, its employees, or management online.'”

• “Refrain from any action that would harm persons or property or cause damage to the company’s business or reputation.”

There are at least 200 other variations. I’m not kidding.

You’ll notice that several of these are especially applicable to social media and Internet use, which are huge areas of focus in recent litigation. Others are overly broad (in the NLRB’s viewpoint) inducements to confidentiality, or attempts that go too far to regulate employees’ speech (again in the NLRB’s viewpoint).

The flaw in most of these policies is that the NLRB thinks they could reasonably restrict or have a “chilling” effect on employees’ protected rights to talk and act together to try to better their working conditions. This chilling effect could be overt, such as, “Do not discuss company information on social media." But in many other cases it’s indirect, simply involving the way employees might interpret the policy.

To add insult to injury, you can get in trouble for having a noncompliant or unlawful policy,whether or not you even enforce it.

Here’s what got Chipotle restaurants in trouble

National burrito mega-chain Chipotle has faced a lot of bad publicity this past year, including a massive NLRA-focused lawsuit regarding the termination of employee James Kennedy. Among the problems the NLRB found with Chipotle’s managerial actions and policies were:

• Kennedy was fired right after petitioning that Chipotle workers weren’t getting to take their breaks. As an action specifically designed to communicate with coworkers about working conditions, it was clearly an example of NLRA-protected concerted activity.

• Chipotle’s social media policy was old and non-NLRA-compliant. It had been updated, but the updated policy was not in consistent use. Problems included a ban against “posting incomplete, confidential, or inaccurate information, and making disparaging, false, or misleading statements.” The NLRA ruled this policy to be too broad, capable of dissuading workers from exercising their rights to protected concerted activity.

These policy problems came to light after Kennedy was asked to remove tweets complaining about cheap labor. A judge originally ruled that this employer request was an NLRA violation, but the NLRB reversed this ruling and said Kennedy’s tweets were not in themselves protected concerted activity—this time. Social media posts often areprotected.

Incidentally, Kennedy had not only participated in recent NLRA-protected actions, he was a war veteran suffering from PTSD. So to avoid the likelihood of discrimination claims, his employers should have been extra careful that any adverse actions were lawful, documented, highly defensible reasons. If you must ever deal with a similar employee situation, seek expert advice.

Here’s what else gets employers in trouble

Policies and actions like the ones we’ve focused on so far are only a tiny subset of those the NLRB consistently strikes down as unlawful in similar cases. Other usual suspects include:

• Overly broad policies requiring “positivity” in the office, or prohibiting “negative” attitudes, which would include, for instance, complaints and negativity about working conditions.

•“No gossiping” policies, whether geared toward social media use or the workplace itself. Again, these are often seen as overly broad and too restrictive, and might prevent or deter employee communication or concerted actions geared toward improving working conditions.

•Wage confidentiality policies. Many employers often think these are a great idea, but they’re just plain illegal. Wages are definitelya working condition, and your employees have the right to share or compare this information if they choose to.

•Plenty more. Employers and HR experts alike have been scrambling to keep up with NLRB cases in recent years, as they strike down or take exception to more policies that used to be old standards.

Keep in mind, if an employee brings a complaint against you, the NLRB will dissect all of your office policies as it considers the case, and punish you for anything it finds objectionable. That’s how most small employers get in trouble.

So what does the NLRB allow? Fix your handbook

I don’t recommend not having a social media or Internet policy—along with other policies that lawfully communicate your expectations to employees—in your employee handbook, because that would leave you completely unprotected. However, creating legally enforceable policies requires a lot of HR and legal expertise, plus time to keep up with recent NLRB findings.

The only good option is a policy written by an attorney or HR company, such as CEDR. Hiding under the covers and thinking happy thoughts won’t keep you safe from this bogeyman. Instead, protect yourself by having your employee handbook evaluated by HR and employment law experts to identify and repair any possible NLRA violations. Remember, it’s always better to be safe today than sorry tomorrow, especially if it means you get to sleep soundly tonight.