Under Section 7 of the National Labor Relations Act, employees have the right to engage in “concerted activity.” All employees have this statutory right, not just those who are members of a union. Not just those working in a unionized environment. Employers – all employers – must, therefore, be concerned about recent indications that employee handbooks and policies will be closely scrutinized and broadly read to determine whether they unlawfully violate employees’ Section 7 rights.
This concern initially manifests itself most acutely in the context of employee handbooks, which may set forth a range of employment policies that, intentionally or not, unlawfully impede employees’ ability to engage in concerted activity. On March 18, 2015, the National Labor Relations Board’s general counsel published a 30-page “Report of the General Counsel Concerning Employer Rules.” In the report, he provides a summary of the types of rules the NLRB has found to be contrary to Section 7. Although the introduction recognizes that most employers likely do not draft their policies to prohibit or restrict conduct protected by the NLRA, “the Act does not allow even well-intentioned rules that would inhibit employees from engaging in activities protected by the Act.” Ignorance or lack of intent is no excuse – if a policy has a chilling effect on or could be reasonably construed by employees to encompass Section 7 activity, it is unlawful.
The Report provides numerous examples of handbook provisions that the NLRB would construe as unlawfully restricting employees’ Section 7 rights, including rules regarding confidentiality, conduct toward the employer and supervisors, conduct toward fellow employees, and, among others, employee interaction with third parties. Covering a wide range of issues and activities, the NLRB views the employee handbook policies discussed in the Report as unlawful because an employee could construe them as restricting the right to strike, discuss unionization, complain about working conditions or otherwise engage in protected concerted activity.
Although not all of the interpretations proffered in the Report have been upheld by courts in litigation, the Report remains valuable in revealing the NLRB’s perspective when it reviews work rules and how employers may attempt to modify their policies to survive NLRB scrutiny. Moreover, it is also abundantly clear that no private sector employer, whether unionized or nonunion, is immune from the NLRB reviewing their policies and finding fault based on NLRB speculation as to how the policies may be perceived by employees.
Indeed, every private sector employer with a handbook is vulnerable to NLRB review, analysis, and enforcement. This would, then, be an opportune occasion for employers to revisit their employee handbooks and, utilizing the Report’s guidance, modify as appropriate to minimize the likelihood of employee complaints and NLRB inquiry.