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Employers Beware: The NLRB Is Expanding Employee Rights By Declaring Many Typical Workplace Rules Unlawful

10.26.12

Ever since the National Labor Relations Act ("Act") was passed in 1935, employees have had the right to engage in "protected concerted activity" ("PCA") for their mutual aid and protection. These rights apply to employees regardless of whether they are represented by a union in their workplace. The scope of activities covered by these terms has been defined and evolved through many decisions of the National Labor Relations Board ("NLRB"), the Supreme Court of the United States and other federal courts.

Under President Obama, the NLRB has been very aggressive in further expanding employee rights to engage in PCA. This conclusion is supported by the NLRB's rulings or official guidelines with regard to social media, employment-at-will and off-duty access policies.

Social Media and Related Policies

No other policy area has received more attention by the NLRB than social media. The attention has arisen because social media is a relatively new technology, at least when compared to the history of the Act. Social media policies also cover a broad range of topics, such as confidential information, harassment, workplace violence, contact with third parties, the media or government agencies, and therefore may involve many different employee rights.

The NLRB's General Counsel issued three different papers setting forth guidelines concerning what employers may and may not say in social media policies. The length and scope of these guidelines gives a lot of insight into the current NLRB's view of employee rights.

Policies or Rules Declared Unlawful

By way of example, the last of the General Counsel's guidelines on social media, issued on May 30, 2012, declared the following rules or polices to be unlawful:

Policies or Rules Declared Lawful

In those same guidelines, the NLRB's General Counsel ruled the following rules to be lawful:

Employment At-Will Policies

Officials of the NLRB also declared key phrases in traditional employment-at-will policies to be unlawful in two cases filed in the Phoenix Region of the NLRB earlier this year. In one of those cases, the one that did not settle before trial, an Administrative Law Judge ("ALJ") held that an employer's requirement that an employee sign an acknowledgment that the employee's at-will status "could not be amended, modified or altered in any way" was unlawful because "[c]learly such a clause would reasonably chill employees who were interested in exercising their Section 7 rights [to engage in PCA]."

Although untested, it is possible that the following language would address the language cited by the ALJ as unlawful and cure any defects: "The at-will nature of employment with [Employer Name] may be modified only if in writing, signed by you or your representative and an authorized Center representative." This language leaves open the possibility that an employee could have a representative, including a union, "negotiate" for a better deal than simply at-will employment and should be held to be lawful.

Off-Duty Access Policies

The NLRB also held a hotel chain's "no off-duty access" rule to be unlawful because the rule reserved the right to the employer to exercise its discretion to grant exceptions to its general rule that employees were not allowed to enter onto its property when they were not working." Under the rule of law applied by the NLRB, a no access rule is valid only if three conditions are met. The rule must (1) limit access solely with respect to the interior of the employer's premises and other working areas; (2) be clearly disseminated to all employees; and (3) apply to off-duty employees seeking access to the facility for any purpose and not just to those engaging in union activity.

Employers who want to ban employees from coming onto their property when they are not working will have to meet all three of these criteria. As result, lawful no-access rules will be harsher and cannot include any exceptions.

Conclusion

By its nature, the NLRB is prone to what experts call "policy oscillations" where its interpretations of the law may change with the political party in power at any given time. To some degree these fluctuations can be expected. However, the current NLRB seems to have taken a dramatic turn in the expansive way it views employee rights. Employers should be aware of these recent developments and should review their work rules and policies to make sure that they still comply with the law as viewed by the current NLRB. Specifically, employers should revise their social media, employment-at-will and no-access polices as soon as possible.

For more information on this subject, please contact the author via e-mail at dabrannen@fisherphillips.com or by phone at 404.240.4235.

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