United States: Labor Law Developments That Apply To You Even Though You Think They Don't

To Our Nonunion Clients

Most of our clients have nonunion workforces, a fact which reflects the limited union presence in this country generally. However, just because your company is nonunion does not mean that it is not subject to the National Labor Relations Act and goings on at the National Labor Relations Board. This short article will highlight some recent "traditional" labor law developments that apply to us all, union or nonunion.

Off-duty Employee Access

Many companies have off-duty employee access rules which prohibit employees from being on company premises or a jobsite unless it is their working shift (which maybe cuts down on union organizing activities). While these rules are enforceable, they are subject to ongoing scrutiny by the National Labor Relations Board. The problem usually arises when there are exceptions to the company's rule. For example, are the employees allowed back on site for the benefit of the company (completing paperwork or visiting HR or accounting), or are they allowed on site as a member of the public (think hospital)? If there are exceptions, the rule must comply with the Board's line of access cases revisited in the Sodexo America decision this summer. To summarize, the Board distinguishes between company business and nonemployee business like being a customer or patient. If the exception to the rule allows employees to return for company business or company-sponsored events, the rule likely will be struck down as restrictive of employee rights to engage in concerted (group) activity under the National Labor Relations Act. If the exception to the rule only allows employees to return in a non-employee status like a customer, the rule likely will be fine.

Employee Handbook At-will Disclaimers

Labor lawyers have been telling employer clients to put "at-will" language in their company handbooks and manuals at least since the early 1980's. This is because, in many states, courts held that an employee handbook could be a binding contract about such things as length of employment. At-will language, stating that the handbook was not a contract of employment and that employment could be terminated at the will of either party at any time for any reason, effectively eliminates this implied contract problem. Well, the Board thinks that many employers have gone too far with handbook disclaimers. Specifically, some handbooks state that the employee's relationship with the company is at will and that the relationship can never be changed. The Board's view is that such a broad statement, because it could be interpreted as prohibiting employees from acting collectively (organizing a union and demanding bargaining), interferes with employee rights under the NLRA. So, if your disclaimer states only that the company's employment is at will and that lower management employees cannot change that fact (the president only can change it for example), your handbook language is okay. On the other hand, if it says simply that the policy never can be changed or that no one at the company ever can change the policy, it probably is too broad.

Confidential Workplace Investigations

In addition to advocating at-will disclaimers for decades, we labor lawyers also have been training clients to implement employee complaint and investigation procedures for a long time. These procedures, coupled with a sexual harassment policy for example, can protect a company from sexual or other types of harassment complaints that are not brought to the attention of the company. It is very common in such investigations for HR representatives or in-house legal counsel to tell employees brought into the investigation to keep the matter discussed "confidential." This is especially true for reports of financial wrongdoing or sexual misconduct. Late this summer, the Board struck down a blanket confidentiality rule in the Banner Health case. The problem for the Board in that case was that the employer's investigation required all discussions to be kept confidential, and it even had a form for the employees to sign which said so. Such a "blanket" approach is unlawful. In order to justify a directive not to discuss, a company will have to justify, on an individual case-by-case basis, that the conversation implicated the need to protect a witness, to protect evidence from being destroyed, or to prevent a cover up or the fabrication of future testimony.

Social Media

Most everyone now is aware that the Board is taking on company social media policies. Many have been struck down as too broad and restrictive of employees' rights to communicate legitimate workplace concerns with each other. To simplify, if employees are allowed to discuss something among themselves in person under the National Labor Relations Act (like wages, hours, terms of employment), then they likely are allowed under the Act to discuss that same subject on Facebook. On the other hand, activities in the workplace that are not protected from employer discipline, like sexual harassment or the use of racially offensive language, are not protected on Facebook either. Here are some examples of policies that the General Counsel of the NLRB thinks are too broad: 1. General company nondisparagement policies unless they are tailored toward actual slander or harassment-type issues, 2. confidentiality of everything policies (like policies mentioning wages) as opposed to policies protecting only company trade secrets or the like, 3. policies that require employees to discuss issues with management first, 4. policies that prohibit any and all communication with the media, 5. policies that prohibit self identification, 6. policies that prohibit the use of company logos, and 7. policies that have an overbroad prohibition of "unprofessional" behavior. Notably, the GC has approved the social media policy of a well-known discount retailer that can be found on the internet using a well-known search engine.

Notice Posting Rule

This saga continues. Stay tuned. We will keep you posted.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.