NLRB abandons pursuing employee rights notice rule, but continues scrutinizing non-unionized workplaces
As we previously reported, the National Labor Relations Board (NLRB) sought to impose a rule that would have required most private-sector employers to post a notice detailing the rights of employees under the National Labor Relations Act (NLRA), including their right to organize. The NLRB recently abandoned its rulemaking effort to require posting of the notice. The NLRB elected not to appeal to the U.S. Supreme Court two U.S. Courts of Appeals decisions that found the NLRB’s rulemaking effort to require posting of the notice to be unlawful. Thus, employers are not required to post the NLRB’s employee rights notice.
More information concerning the notice posting and the court decisions can be found in Honigman's earlier Labor Alerts.
While the NLRB has abandoned its effort to expand its reach through rulemaking, it continues to issue decisions that impact non-unionized employers. As a consequence of those decisions, employers should continue to review workplace policies and practices to avoid claims of unfair labor practices.
Recently, a NLRB administrative law judge (ALJ) found a private technical school to be in violation of the NLRA by maintaining a “no gossip” policy in its employee handbook. Laurus Technical Inst. , Case No. 10-CA-093934, 2013 WL 7021256 (N.L.R.B. Div. of Judges Dec. 11, 2013). The ALJ’s ruling came despite no evidence of union activity. The “no gossip” policy prohibited gossip and stated that “[g]ossip is an activity that can drain, corrupt, distract and down-shift the company’s productivity, moral[e], and overall satisfaction.... Most people involved in gossip may not intend to do harm, but gossip can have a negative impact as it has the potential to destroy a person’s or organization’s reputation and credibility....” However, the policy broadly defined prohibited “gossip” to include “[t]alking about a person’s professional life without his/her supervisor present” and “negative,  untrue, or disparaging comments or criticisms of another person or persons.” The ALJ found the “no gossip” policy to be unlawfully overbroad and restrictive of employee rights under Section 7 of the NLRA to discuss the terms and conditions of their employment. The employer also was found to have violated the NLRA when it terminated an employee for, among other reasons, violating the unlawful “no gossip” policy by discussing job security concerns with co-workers.
Similarly, the NLRB found an employer’s handbook policy that prohibited the disclosure of wages or compensation to any third-party or other employees to be in violation of the employees’ Section 7 rights under the NLRA. Bettie Page Clothing , 359 NLRB No. 96 (2013). The NLRB held that “Section 7 protects the rights of employees to discuss the wages and other benefits with each other and with nonemployees.” The NLRB further found that the employer violated the NLRA when it discharged three employees based on their online Facebook postings. The employees participated in a Facebook discussion that criticized their employer for not closing shop early due to neighborhood safety concerns at night. The NLRB determined that this online discussion was concerted activity by the employees concerning the terms and conditions of their employment and protected under the NLRA.
These cases illustrate that the NLRB’s expansive interpretation of Section 7 of the NLRA will continue to impact non-unionized workplaces. The Labor and Employment attorneys at Honigman will continue informing you about developments concerning the NLRB. For more information regarding this or any another labor and employment related issue, please contact any of our Labor and Employment attorneys listed here.