Hopefully you have heard by now that Employee Handbooks can be
your friend. They give you an opportunity to set forth policies,
procedures and avoid confusion about what you expect from
employees. That sounds reasonable, right? Not so fast. Some
policies, even policies that do nothing more than state the
applicable state law on a subject, can land an employer in hot
For those who don't closely follow decisions of the National
Labor Relations Board (NLRB), thinking that it doesn't affect
them as non-union shops, you are in for a rude awakening. The
Acting General Counsel of the NLRB, Lafe Solomon, has begun broadly
interpreting Section 7 of the National Labor Relations Act (NLRA)
to include almost any action which could conceivably be construed
to chill employee's rights to engage in concerted activity as
unlawful. Yes, I intended to use the word "conceivably"
and for once I am not dripping with sarcasm. I meant it.
By now, most employers understand that the NLRB protects
employees who get together to complain about their pay, their
benefits or how management treats them. I still occasionally run
across policies in Employee Handbooks which advise employees to
keep all compensation terms confidential. However, such policies
have long exposed employers to a NLRB complaint, even when the
workplace is not unionized. It is not a reach to conclude that a
bald-faced prohibition on employees discussing compensation falls
within the Section 7's protection of employees discussing the
terms and conditions of their employment. But, sometimes it
isn't so clear that the policy was intended to proscribe
discussion of the terms and conditions of employment.
For example, what about a policy which forbids employees from
posting "confidential guest, team member or company
information" on social media? Unfortunately, this language has
been construed by the NLRB's Acting General Counsel to be so
broad and vague as to fall within Section 7's protections of
employees' ability to discuss their working conditions. While
that may seem like a stretch to many employers who rely on
plain-language and common sense to guide their decisions, it was
enough for the NLRB to find a violation.
In the past 9 months, the NLRB has issued three memos to clarify
what an employer (union or not) may do in the social media context
without potentially violating employee's rights. Specifically
Operations Management Memo describes several cases involving
social media policies. In six of the seven cases the NLRB found
some portion of the social media policy to be unlawful. Not long
before that, the NLRB provided memos in
January 2012 describing discharge cases arising out of an
employee's termination for content posted on Facebook.
But that's not the least of it.
Earlier this year, the NLRB issued an opinion that
a policy that requires employees to acknowledge their at-will
status could be chilling on an employee's Section 7 rights to
engage in concerted activity. What!?!!? That's right, the
NLRA's Acting General Counsel has taken the position that an
acknowledgement in a Handbook that employment was at-will and that
status could not be modified except in a writing, signed by
management, violated Section 8(a)(1) of the NLRA because it would
chill an employee's Section 7 right to engage in concerted
activity. What, pray tell, were the offending provisions, found by
the NLRB to be "overly broad, discriminatory, and
coercive"? See below and tell me whether your Employee
Handbook includes anything of the sort:
"I understand my employment is 'at
"I acknowledge that no oral or written statements or
representations regarding my employment can alter my at-will
employment status, except for a written statement signed by
me" and Hyatt's president or executive vice
"[T]he at-will status of my employment... can only be
changed in writing" signed by the employee and one of
the two Hyatt executives.
Texas has long applied the default rule of at-will employment,
meaning that either party to the employment relationship can
terminate the relationship at any time for any reason. Many
jurisdictions do the same. But the NLRB has taken the position that
having an employee confirm that he understands he is employed
at-will is a violation of the NLRA. Lest you think this was an
isolated incident, you should know that the Acting General Counsel
has announced to more than one group across the nation, including
the Connecticut Bar Association earlier this month, that the
"next big enforcement focus will be on employers'
"at-will" statements within employee handbooks.
I kid you not.
Get ready for it or risk being hoisted on your own petard.
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