&
The Resource Newsletter for Home and Hospice Care
June 2014
Home Care
The Law
LEGAL HOT TOPIC:
NLRB Finds Common Personnel Policies Illegal
By John C. Gilliland II and Eileen Maguire, The Gilliland Law Firm PC
This issue’s legal hot topic focuses on the recent rulings from the
National Labor Relations Board. What has been acceptable for years
and, in many cases viewed as good personnel practices, are now
prohibited unfair labor practices. Find out what has been ruled illegal
and learn how to prepare for more rulings.
Published by Indiana Association for Home and Hospice Care, Inc.
6320-G Rucker Road
Indianapolis, IN 46220
www.iahhc.org | (317) 775-6675
LEGAL HOT TOPIC/John C. Gilliland II and
Eileen Maguire
National Labor Relations
Board Finds Common
Personnel Policies Illegal
How far will this NLRB go in knocking down policies that
often have been permissible for decades? We just don’t
know, but it is unlikely to be good for employers.
O
ver the past year or so, the National Labor Relations Board (NLRB) has ruled
various personnel policies to be illegal. What has been acceptable for years
and, in many cases viewed as good personnel practices, are now prohibited
unfair labor practices.
Why is this happening? The majority of the NLRB has become very pro-union. It is
aggressively pursing regulations to make it easier for unions to organize employees
and to broaden what it believes are infringements of employee rights under the
National Labor Relations Act.
This article will alert you to policies the NLRB has found to be unlawful. But first,
some background will help put this in context.
Labor Law and Employee Rights
When Is Your Agency/Hospice Subject to the Labor Law?
Your agency/hospice is subject to the National Labor Relations Act if it grosses at least
$100,000 annually. If your agency is part of a hospital, it is covered irrespective of its
gross income. If annual figures are not available, gross income for less than one year
may be used.
Employee Rights
If your agency/hospice is subject to the national labor law, your employees have
certain rights even though they are not unionized and there is no union involved in
any way. These rights are commonly called “Section 7 rights,” referring to Section 7 of
the National Labor Relations Act.
Among other things, under Section 7, employees have the right:
“... to engage in ... concerted activities for the purpose of collective bargaining
and other mutual aid and protection...”
In other words, your employees have the general right to meet, talk, solicit and
| Page 2
distribute literature concerning the terms and conditions of
their employment. In many instances, however, employers
have been allowed to establish reasonable conditions for
the exercise of these rights. For example, employers have
been permitted to restrict solicitation and distribution to
non-working time in non-working locations.
Section 7 only protects “concerted” activities. This means
an employee must be acting with other employees or on
behalf of other employees. Activity by a single employee for
only that employee’s own personal benefit is not concerted
action.
The NLRB has routinely found violations of employees’
Section 7 rights when employer personnel policies/
handbooks infringe on employees’ ability to discuss wages and the terms and
conditions of their employment. What is happening now is that NLRB is expanding
the kinds of policies that it believes violate those rights.
Violation of an employee’s Section 7 rights may result in the NLRB revoking any
discipline you have imposed on the employee, granting back-pay awards, voiding
your policy, and any other remedy the NLRB determines is desirable. In the context
of a union organizing campaign, your agency/hospice’s commission of an unfair labor
practice will be used by the union to try to convert employees to supporting the union.
Examples of Policies Found to be Unlawful
Employment at Will
Most employers want their relationship with their employees to be “employment-atwill.” Employment-at-will refers to the legal doctrine that in the absence of a contract
to the contrary, either the employer or the employee may terminate employment
at any time and for any reason, or for no reason at all. Of course, even when the
relationship is at-will, an employer’s right to terminate an employee’s employment
may be limited by other laws, e.g., anti-discrimination laws.
The NLRB’s Division of Advice helps NLRB regional offices determine whether or not
unfair labor practice charges are meritorious. In March 2014, the Division of Advice
dealt with the lawfulness of an employer’s employment-at-will policy finding parts to
be lawful, but still troubling in part. The language involved stated:
“Employment at the Employer is on an at-will basis unless otherwise stated in a
written individual employment agreement signed by the Senior Vice President
of Human Resources. This means that employment may be terminated by the
employee or the Employer at any time, for any reason or for no reason, and with
or without prior notice.
No one has the authority to make any express or implied representations
in connection with, or in any way limit, an employee’s right to resign or the
Employer’s right to terminate an employee at any time, for any reason or for
no reason, with or without prior notice. Nothing in this handbook creates an
employment agreement, express or implied, or any other agreement between
any employee and the Employer.
No statement, act, series of events or pattern of conduct can change this at-will
relationship.”
The Division of Advice addressed whether employees could reasonably construe this
Page 3 |
Your agency/hospice is
subject to the National Labor
Relations Act if it grosses
at least $100,000 annually.
If your agency is part of
a hospital, it is covered
irrespective of its gross
income. If annual figures
are not available, gross
income for less than one
year may be used.
at-will policy as prohibiting them from organizing a union. It concluded the first and
second paragraphs were lawful because they would not lead employees to feel it would
be futile to attempt to unionize.
It also concluded the final sentence of the policy was troubling but lawful because it
did not require employees to agree that their at-will status could never be changed. It
distinguished an earlier case where it found an at-will policy to be unlawful because,
in that case, employees were required to sign a statement that they agreed their atwill status could not be “amended, modified or altered” in any way.
Off-Duty Access
It is not unusual for an employer to have a policy prohibiting off-duty employees from
remaining on its premises after they have completed their workday.
In a May 2014 decision, the NLRB dealt with such a policy, which permitted
exceptions to be authorized by the employee’s supervisor. The Board held such a
policy was unlawful because it permitted exceptions to be made at the supervisor’s
unlimited discretion. The supervisor conceivably could deny access to employees
engaging in union activity, but permit access for other purposes.
In a 1976 case, the NLRB stated:
“... a rule restricting off-duty access is valid only if it (1) limits access solely with
respect to the interior of the facility and the other working areas, (2) is clearly
disseminated to all employees, and (3) applies to off-duty employees seeking
access to [the premises] and not just to those employees engaging in union
activity.”
The Board’s 2014 decision used prong three of the standard stated in 1976 to find
that allowing the supervisor to make exceptions was unlawful. This seems to require
employers to choose between two untenable policies: (1) completely prohibiting off-duty
employees from accessing the employer’s premises; or, (2) allow unlimited access.
Insubordination
In another May 2014 decision, an NLRB Administrative Law Judge (ALJ) found
unlawful an employer’s rule which prohibited, “...
insubordination to a manager or lack of respect and
cooperation with fellow employees or guests...”
The Board’s 2014 decision
used prong three of the
standard stated in 1976
to find that allowing
the supervisor to make
exceptions was unlawful.
This seems to require
employers to choose
between two untenable
policies.
The ALJ said this rule had a chilling effect on employee’s
Section 7 rights because it was too broad and subjective it did not define “insubordination” or “lack of respect”
Confidentiality Requirements
The NLRB has held an employer may not have a
blanket rule prohibiting employees from discussing
ongoing investigations of employee misconduct. Instead,
the employer must articulate a legitimate need for
confidentiality and address confidentiality on a case-bycase basis.
Prohibiting Employees from Discussing Wages
Related to confidentiality rules, a number of NLRB
decisions have held that nothing is more basic to terms
and conditions of employment than wages. Consequently,
rules prohibiting employees from discussing wages
among themselves or with non-employees, e.g., a union,
violate employees’ Section 7 rights.
| Page 4
Negativity and Gossip
In April 2014, the NLRB was presented with the validity
of three hospital employment policies. One prohibited
employees from making “negative comments about our
fellow team members.” Another was that employees
must “represent [the hospital’] in the community in a
positive and professional manner in every opportunity.”
The final one required employees to not “engage in or
listen to negativity or gossip.”
The Board held the prohibition against “negative
comments” and “negativity” intrinsically unlawful as a
violation of employees Section 7 rights.
It also found requiring employees to represent the
employer “in a positive and professional manner” to be
unlawful because it was overbroad and ambiguous. The Board distinguished a 2002
case which held a requirement that employees were to represent the company “in a
positive and ethical manner” to be lawful. It concluded “positive and ethical” would be
construed differently than would “positive and professional.”
Online Disclosures
In another May 2014 case, an ALJ ruled an employer maintained an unlawful online
communications policy. The policy required employees to include a specific disclaimer
if they identified themselves as an employee of the company and published any
work related information online. The ALJ held requiring the disclaimer placed an
unreasonable burden on an employee’s right to engage in Section 7 protected activities
and was beyond any legitimate interest of the employer.
Saving Clauses
Can a “savings clause” or “disclaimer” in an employee handbook or personnel policy
manual protect policies from attack by the NLRB if it says nothing in the handbook or
manual should be interpreted to deny any employee’s rights under the National Labor
Relations Act? The answer is, “Maybe, maybe not.”
Recently, the NLRB dealt with an employer’s disclaimer in an employee handbook.
The disclaimer was quite long and affirmed various employee rights with regard to
labor matters. It included the following sentence:
“[D]uring union organizing campaigns, management shall support the
employee’s individual right to choose whether to vote for or against union
representation without influence or interference from management.
The Board said an employer’s notice to employees advising them of their rights under
the National Labor Relations Act may clarify the scope of an otherwise unambiguous
and unlawful rule. However, it held the employer’s policy in this case was not
sufficient to do so. It stated three reasons for this.
• The policy was too narrow. In the Board’s view an effective savings clause should
address all of the rights protected by the National Labor Relations Act.
• The disclaimer language in this case was not located in the handbook close to the
rules the Board found to be unlawful, i.e., it was 13 pages away.
• The employer had committed other unfair labor practices which were not in
keeping with the disclaimer.
Page 5 |
Can a “savings clause” or
“disclaimer” in an employee
handbook or personnel
policy manual protect
policies from attack by the
NLRB if it says nothing in the
handbook or manual should
be interpreted to deny any
employee’s rights under the
National Labor Relations
Act? The answer is, “Maybe,
maybe not.”
The NLRB also found certain other employer rules to be unlawful. The rules
prohibited:
• “discourteous or inappropriate attitude or behavior to passengers, other
employees or members of the public.” The Board felt this was unlawful because
it was ambiguous and permitted employees to reasonably construe it as limiting
communication concerning their employment;
• “disorderly conduct during working hours.” This was held to be unlawful for the
same reasons as for the prohibition on discourteous and inappropriate attitude
and behavior.
• disclosure of “any company information for any purpose other than to perform
duties.” The Board reasoned that the failure to define company information
allowed employees to read it as a restriction on their right to disclose their own
wage and benefit information.
• making any statements about an accident to “anyone except the police or
company officials” because it was an unlawful gag rule on discussing working
conditions with other employees or union representatives.
What May Be Coming
Use of Employer’s Email System
In 2007, the NLRB had held that employees do not have a right to use their employer’s
email system for non-business purposes, such as to support union organizing.
It is now anticipated that the Board may overturn that decision. In April 2014, the
Board issued a Notice and Invitation to file briefs in a new case specifically asking the
briefs to address whether or not the 2007 decision should be overruled and a new rule
adopted permitting employees, who may use their employer’s email system for work
purposes, to have the right to use their employer’s email system for union organizing
purposes.
Weingartner Rights
Some years ago, the U.S. Supreme Court upheld an NLRB decision that an employee
who is represented by a union has the right to have a union representative accompany
the employee to an investigatory interview if the employee reasonably believes
the interview could result in discipline. This has become known as an employee’s
Weingartner rights.
It seems the lawfulness
of many policies turns
on an interpretation of
employer policies that
ignores reality and
emphasizes minutia of
wording.
Since then, the NLRB has gone back and forth on
whether an employee who is not represented by a union
also has Weingartner rights. Most recently, in 2004,
the Board held Weingartner rights exist only for union
represented employees, not for non-union employees.
The NLRB’s regional offices have now been directed
to submit to the NLRB’s Office of Advice any cases
involving the applicability of Weingartner rights in nonunionized settings. This may mean an effort is underway
to once again give those rights for non-union employees.
| Page 6
What to Do
If you are feeling the NLRB is nuts and knows nothing about trying to run a business,
you are not alone. It seems the lawfulness of many policies turns on an interpretation
of employer policies that ignores reality and emphasizes minutia of wording.
So, what should you do? That is a good question. Attorneys representing employers
are struggling with the same question and not finding many good answers.
How far will this NLRB go in knocking down policies that often have been permissible
for decades? We just don’t know, but it is unlikely to be good for employers.
Reasonable rules of any kind potentially may be found to be unlawful.
One thing is clear - avoid statements in your Acknowledgment of Receipt forms for
your handbook/policy manuals that state the employee agrees to abide by all the
policies in the handbook or manual. That will be a help in some cases.
Unfortunately, that is about all that is clear at this time. The most that can be said is
that, in conjunction with your attorney:
• Review the wording of your employee handbook/personnel policies to find any language that could conceivably be viewed as violating your
employees’ Section 7 rights. Given the NLRB’s current approach, it is
unlikely you will identify everything the NLRB might find unlawful, but
give it your best try.
• For each policy you identify, determine how important it is to your
agency/hospice.
• Then weigh the importance of each policy you’ve identified against the
legal risks associated with it. Is the policy important enough to take
those risks? If so, can the wording of the policy be improved to lessen
the risk? If it is not important enough to take the risks, delete the policy
entirely.
John C. Gilliland II is an attorney with The Gilliland Law Firm PC,
Indianapolis, Indiana. Eileen Maguire is Of Counsel to The Gilliland
Law Firm P.C. They can be reached at (317) 704-2400, jgilliland@
gillilandlawfirm.com, or [email protected].
This article represents the author’s views and not necessarily those of IAHHC, is for educational and informational
purposes only, is not intended to be legal advice, and should not be used for legal guidance or to resolve specific legal
problems. In all cases, agencies should seek legal advice applicable to their own specific circumstances. © 2014 The Gilliland
Law Firm PC. Members are encouraged to submit legal topics for future issues to the Indiana Association for Home and
Hospice Care, Inc.; 6320-G Rucker Road, Indianapolis, IN 46220.
Page 7 |
&
Home Care
The Law
Published by the Indiana
Association for Home &
Hospice Care, Inc.
&
Home Care
The Law
Published by Indiana Association for
Home and Hospice Care, Inc.
6320-G Rucker Road
Indianapolis, IN 46220
www.iahhc.org | (317) 775-6675
NLRB Finds Common Personnel Policies Illegal
How far will this NLRB go in knocking down policies that often have been
permissible for decades? We just don’t know, but it is unlikely to be good for
employers.
| Page 8