WHY IS THE NLRB SNOOPING AROUND MY EMPLOYEE HANDBOOK? Presented by: Steve Bernstein Phone: (813) 769-7513 Email: [email protected] www.laborlawyers.com Atlanta · Baltimore · Boston · Charlotte · Chicago · Cleveland · Columbia · Columbus · Dallas · Denver · Fort Lauderdale · Gulfport · Houston · Irvine · Kansas City · Las Vegas Los Angeles · Louisville · Memphis · New Jersey · New Orleans · Orlando · Philadelphia · Phoenix · Portland · San Antonio · San Diego · San Francisco · Tampa · Washington, DC The National Labor Relations Act Became law in 1935 as part of FDR’s “New Deal” Section 7 gives employees the right to: Self-organize, to join or assist labor organizations Bargain collectively with representatives of own choosing Engage in other concerted activities for the purposes of … mutual aid or protection Refrain from such activities except where required by contract Intended to encourage unionization Who Does the NLRA Cover? • Most private sector employers engaged in interstate commerce with annual revenue of at least $500,000. • Applies to both union and non-union employers The National Labor Relations Board ● ● NLRA created the National Labor Relations Board (NLRB) Consists of: ● Five members, 6-year terms ● ● ● ● ● Nominated by President, approved by Senate 3 from President’s party, 2 from opposition party Appointed General Counsel Most “law” under the NLRA created by NLRB decisions Decisions shift with political changes Meet The New NLRB • Adjudicative decisions, guidance memos and rule-making drive the NLRB’s agenda • Facilitating organizing and expedite elections • Reversing decades of precedent • Increased focus on non-union employers • Reinventing itself on heels of union decline The State Of The Unions ● ● ● 1952 – 35% of U.S. employees 1983 – 20.1% of U.S. employees 2015 - 11.1% of U.S. employees ● ● 6.6% of private sector 35.7% of public sector Union Plan To Reverse The Trend • Organized labor turned to the NLRB • NLRB cannot amend the NLRA, but it can: • Use rulemaking authority to change regulations • Reverse or modify prior decisions • Interpret the Act in ways favorable to the Unions • On April 14th, the NLRB used its authority to implement the “quickie election” rule NLRB’s General Counsel Speaks! • On March 18, 2015, NLRB General Counsel Richard Griffin issued a Memorandum titled “Report of the General Counsel Concerning Employer Rules.” • Identifies NLRB’s position on handbook rules • Gives examples of lawful and unlawful handbook policies and rules Increased Focus on Non-Union Workplaces • Confidentiality (wages/discipline/investigations) • Electronic Communications • Complaint Policies • Class Action Waivers • Dress Codes • Access Rules • Social Media Restrictions • At-will Disclaimers • Workplace Recording/Photography The NLRA • Statutory rights have not changed since 1935 • § 7 – “Employees shall have the right…to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” • § 8(a)(1) – “It shall be an unfair labor practice for an employer to interfere with, restrain or coerce employees in the exercise of rights guaranteed in §7 of this act” NLRB Protections If employees are discussing terms and/or conditions of employment, e.g. wages, discipline may be inappropriate in certain circumstances, as the employees may be engaging in protected activity Employee Advocacy - Prohibits discipline for some forms of employee advocacy - Section 7 protects employees in both unionized and nonunion workplaces - Unfair labor practice for employer to interfere with proper exercise of right Other “Protected Concerted Activities” • • • • • • Sharing information about wages Complaining about policies or managers Displaying union-related insignias/ logos Expressing union support Attempting to organize a union Otherwise discussing employment terms 13 What is “Protected”? • • • • • • • • Solicitation/distribution Wearing insignia Complaining on benefits/working conditions Work stoppages Discussing pay & benefits with peers Disclosing information to third parties Enlisting support of third parties Filing charges/lawsuits What is “Concerted”? • Group action, or • Individual action - one person acting to: • Initiate • Induce • Prepare for group action • Bring group complaints to employer’s attention Anatomy Of an Individual Gripe • No particular audience in mind at the time • No language suggesting employee sought to initiate or induce group action • Post or comment did not grow out of prior discussion over employment terms and conditions • Did not generate discussion of shared complaints • You can still bar inappropriate “rants” that are not part of the dialogue between employees Section 7 and Employee Handbooks • Even though a handbook rule may not explicitly prohibit Section 7 activity, it can still be found unlawful in any one of three circumstances: 1. Employees would reasonably construe the rule’s language to prohibit Section 7 activity, 2. The rule is promulgated in response to union or other Section 7 activity, or 3. The rule explicitly restricts the exercise of Section 7 rights. • Intent is irrelevant • Focus is on “chilling effect” Confidentiality Policies “A confidentiality rule that broadly encompasses ‘employee’ or ‘personnel’ information, without further clarification, will reasonably be construed by employees to restrict Section 7–protected communications.” Unlawful Confidentiality Policies • Employees are prohibited from disclosing proprietary or confidential information about the company or other associates. • Employees may discuss work matters only with other company employees who have a specific business reason to know or have access to such information. • No part of the Company’s employee handbook may be reproduced or transmitted in any form or by any means without the express written permission of the company. Lawful Confidentiality Policies • The misuse or other unauthorized disclosure of confidential information not otherwise available to persons or firms outside the company is cause for disciplinary action, including termination. • Do not disclose confidential financial data, or other non-public proprietary company information. Do not share confidential information regarding business partners, vendors or customers. • No part of this handbook may be reproduced or transmitted in any form or by any means, for any business/commercial venture, without the express written permission of the company. Conduct Towards the Company · A rule that prohibits employees from engaging in “disrespectful,” “negative,” “inappropriate,” or “rude” conduct towards the employer or management, absent sufficient clarification or context, will usually be found unlawful. · An employee’s criticism does not lose protection under the NLRA if it is false or defamatory but rather, it must be “maliciously false.” Conduct Towards Fellow Employees Employees have Section 7 rights to discuss terms and conditions of employment, criticize policies, and “argue and debate with each other about unions, management, and their terms and conditions of employment. These discussions can become contentious, but … protected concerted speech will not lose it protection even if it includes intemperate, abusive and inaccurate statements.” Unlawful Employee Conduct Policies • Refrain from commenting on the company's business, financial performance, strategies, clients, policies, employees or competitors in any social media, without the advance approval of your supervisor. • Do not send unwanted, offensive, or inappropriate e-mails. • “[B]e respectful to the company, other employees, customers, partners, and competitors.” • Do “not make fun of, denigrate, or defame your co-workers, customers, franchisees, suppliers, the Company, or our competitors.” • “Refrain from any action that would harm persons or property or cause damage to the Company’s business or reputation.” • “Don’t pick fights” online. Lawful Employee Conduct Policies • Interfering with the job performance of fellow employees is prohibited. • Each employee is expected to work in a cooperative manner with management/supervision, coworkers, customers and vendors. • Being insubordinate, threatening, intimidating, or sexually harassing a manager/supervisor, coworker, or customer will result in discipline. • Practice caution and discretion when posting content on social media that could affect the company's business operation. • No “rudeness or unprofessional behavior toward a customer, or anyone in contact with” the company. • “Employees will not be discourteous or disrespectful to a customer or any member of the public while in the course and scope of business.” Third Party Communication Policies · Section 7 gives employees the “right to communicate with the news media, government agencies, and other third parties about wages, benefits, and other terms and conditions of employment.” · The most frequent offenders in this category are media policies. · The General Counsel indicated that social media contact rules could be lawful if employees would reasonably interpret them to mean that employees should not speak on behalf of the company, but they were not prohibited from speaking to outsiders on their own behalf or on the behalf of other employees. Unlawful Communications Policies • Employees are not authorized to speak to any representatives of the media about company matters unless designated to do so by HR, and must refer all media inquiries to the company’s media hotline. • If you are contacted by any government agency for any matter relating to your work or the company’s business you should contact the Law Department immediately for assistance. • Events may occur at our stores that will draw attention from the news media. It is imperative that one person speaks for the Company to deliver an appropriate message and to avoid giving misinformation in any media inquiry. Answer all media questions like this: “I am not authorized to comment for the company (or I don't have the information you want). Let me have our public affairs office contact you.” Lawful Communications Policies • The company strives to anticipate and manage crisis situations in order to reduce disruption to our employees and to maintain our reputation as a high quality company. To serve these objectives, the company will respond to news media in a timely and professional manner only through the designated spokespersons. • Policies restricting employees from purporting to speak to media outlets “on the Company’s behalf” Use of Logos, Copyrights and Trademarks · Although a company’s name or logo may be protected by intellectual property laws, employees have the “right to use the name and logo on picket signs, leaflets and other protest material.” · “Employer proprietary interests are not implicated by employees’ non-commercial use of a name, logo, or other trademark to identify the employer in the course of Section 7 activity.” Unlawful Logo Policies • Do “not use any Company logos, trademarks, graphics, or advertising materials” in social media. • Do not use “other people’s property,” such as trademarks, without permission in social media. • “Company logos and trademarks may not be used without written consent.” Lawful Logo Policies • Respect all copyright and other intellectual property laws. • Use of the Company's (or any of its affiliated entities) logos, marks or other protected information or property for any business/commercial venture without the Legal Department's express written authorization. • For our protection as well as your own, it is critical that you show proper respect for the law governing copyright, fair use of copyrighted material owned by others, trademarks and other intellectual property, including our own copyrights, trademarks, and brands.” • Restrictions on Photography and Recording · Section 7 protects the right of employees to “photograph and make recordings in furtherance of their protected concerted activity, including the right to use personal devices to take such pictures and recordings.” · The NLRB will typically apply a balancing test when evaluating such policies, and blanket restrictions will be strictly scrutinized. · Recent decisions have extended to protection to both workplace photography and audio recording. Unlawful Recording, Pictures & PED Policies • Taking unauthorized pictures or video on company property is prohibited. • You may not post photographs taken on Company premises without the advance consent of Human Resources or post photographs of employees without their advance consent. • No employee shall use any recording device including but not limited to, audio, video, or digital for the purpose of recording any company employee or company operation. • Employees are prohibited from wearing cell phones, making personal calls, or viewing or sending texts, while on duty. E-Mail Policies • Many companies give employees off-duty access to the email system, including through mobile devices that might be linked to that system. • The NLRB historically allowed employers to enforce policies imposing a blanket restriction on such use to “business purposes” round the clock. Purple Communications, Inc. • NLRB recently changed its position and now gives employees with such access the legal right to use email systems for concerted activity, including union organizing, during non-working time • “Employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.” • What does this mean? Purple Communications, Inc. • Employers cannot ban all non-business use of e-mail absent proof of “special circumstances.” • In most cases, employers cannot ban use of e-mail for solicitation on behalf of other organizations on non-working time. • Employees are not required to open their e-mail systems to unions and other non-employees. • Employers are not required to give employees who do not use e-mail in their jobs access to the e-mail system. • Employers still have the right to establish “uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline.” • Employers can continue to utilize standard monitoring procedures Unlawful E-Mail Policies • Employees are strictly prohibited from using the company’s e-mail systems in connection with any of the following activities: • Engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company; • Sending uninvited e-mail of a personal nature. Miscellaneous Policies • Prohibiting walking off the job without approval during a scheduled shift. • Employees may not engage in any action that is not in the best interests of the Company. • Entering Company property while off duty without advance permission may result in discharge. • The company has a strong desire in investigations to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up. To assist in achieving these objectives, employees must maintain investigations in strict confidence. The failure to do so may result in disciplinary action up to and including termination. A Compliant Policy Should: • Clarify scope by including examples of impermissible conduct (use “limiting language”) • Avoid ambiguity in application to Section 7 activity • Utilize quotes from policies deemed lawful • Require employees to maintain confidentiality of trade secrets and confidential information • Refrain from imposing excessive restrictions on nonworking time Be Specific and Define Your Terms • Target specific behaviors violating policy • Less is more • Don’t require advance permission • Narrowly focus on unprotected behavior • Flawed policy: Policy barring statements harming Company reputation – employees could read as a ban on protesting employee treatment. • Acceptable policy: Limited prohibition to malicious or obscene comments. Give Examples • Broad categories of prohibited or required conduct will draw scrutiny • Avoid ambiguities and be specific • Give concrete examples related to business products, trade secrets, etc. • Reserve right to take disciplinary action • Acceptable policy: Policy containing “list of plainly egregious conduct” such as vulgar, obscene, harassing, libelous or discriminatory comments 40 Focus on Egregious Misconduct • Discriminatory remarks • Bullying, harassment or retaliation • Threats of violence • Representing an opinion as official policy • Disclosing confidential trade secrets • Development of systems, processes, products, know-how and technology • Disclosing secret, privileged information • Copyright infringement Policy Language to Avoid • Restricting wage/discipline discussions • Outright prohibition on use of Company name/logo • Mandatory advance “approval” language • Prohibit general discussions with media • Using generic terms like “unprofessional,” “inappropriate,” or “harassing behavior” • Requiring concerns to first be raised with management www.laborlawyers.com Avoid Other Examples That May Fall Short • Making “misleading” or “inaccurate” posts • Revealing “non-public company information” • Non-commercial use of logo • “Offensive” or “disparaging” comments • “Friending” co-workers without permission • Commenting on “legal matters” • Use of improper “tone” • Refusal to resolve concerns internally • Contacting government without authorization Consider A Disclaimer • GC says a “savings” clause will not fix an overbroad policy • Board decisions suggest clauses could make a difference • They can be effective if well-written • But will not cure otherwise unlawful policy • Use understandable terms (plain English) • Identify the activity that is being “saved” Closing Points • Do not maintain policies requiring employees to maintain strict confidentiality over wages, bonuses, or commissions • Even if you believe that individual is airing a gripe on their own behalf (and not as concerted, protected activity), work with counsel to investigate before terminating. Closing Points • Review social media policies for language needing definitions or stricter language • Modify broad language prohibiting employees from discussing wages, policies, schedules, safety, dress and appearance codes, work assignments, other employees, or management • Eliminate or adjust language prohibiting posting of company logos, company name, identification of employee with the company, etc. • You can still restrict use of intellectual property Closing Points • Where legitimate confidentiality issues are involved, define information deemed confidential (Social Security numbers, the Coke formula, strategic marketing plans, parent financial information, employee medical information, patient names or medical conditions, etc.) • Add a disclaimer making clear that it is not intended to restrict employee section 7 rights under the NLRA. • You can still bar social media use during working hours. • You can require disclosure as “personal opinion” Final Questions Presented by: Steve Bernstein Phone: (813) 769-7513 Email: [email protected] www.laborlawyers.com Atlanta · Baltimore · Boston · Charlotte · Chicago · Cleveland · Columbia · Columbus · Dallas · Denver · Fort Lauderdale · Gulfport · Houston · Irvine · Kansas City · Las Vegas Los Angeles · Louisville · Memphis · New Jersey · New Orleans · Orlando · Philadelphia · Phoenix · Portland · San Antonio · San Diego · San Francisco · Tampa · Washington, DC Thank You Presented by: Steve Bernstein Phone: (813) 769-7513 Email: [email protected] www.laborlawyers.com Atlanta · Baltimore · Boston · Charlotte · Chicago · Cleveland · Columbia · Columbus · Dallas · Denver · Fort Lauderdale · Gulfport · Houston · Irvine · Kansas City · Las Vegas Los Angeles · Louisville · Memphis · New Jersey · New Orleans · Orlando · Philadelphia · Phoenix · Portland · San Antonio · San Diego · San Francisco · Tampa · Washington, DC
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