why is the nlrb snooping around my employee

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
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Became law in 1935 as part of FDR’s “New Deal”
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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
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NLRA created the National Labor Relations Board
(NLRB)
Consists of:
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Five members, 6-year terms
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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
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1952 – 35% of U.S. employees
1983 – 20.1% of U.S. employees
2015 - 11.1% of U.S. employees
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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”
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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
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What is “Protected”?
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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
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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
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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