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NLRB expands its coverage over non-union workplaces - time to review employee handbooks

February 10, 2014

When is the last time you reviewed your handbook with an eye toward it being possibly challenged at the National Labor Relations Board (NLRB)? By not considering the NLRB’s efforts at expanding its coverage over non-union workplaces, your handbook may be creating claims that you are violating your employees’ rights under Section 7 of the National Labor Relations Act (the Act) as a recent NLRB decision illustrates.

On January 13, 2014, an NLRB administrative law judge (ALJ) found that an employer’s policies regarding confidential information, workplace discourtesy, inquiries, dress code, solicitation and distribution, and social media violated Section 8(a)(1) of the Act. Boch Imports, Inc. and International Association of Machinists & Aerospace Workers, Local 447 (No. 1-Ca-83551). The ALJ determined that the employer’s policies were unlawful because they included overly broad language that could reasonably be interpreted as interfering with or prohibiting an employee’s concerted activities, primarily discussion about protected terms and conditions of their employment with others.

The language found to violate the Act included the confidential information policy prohibiting disclosing “compensation structures and incentive programs;” the discourtesy policy’s prohibition against “engaging in any activity which could harm the image or reputation of the Company;” the inquiries policy’s prohibition against “provid[ing] personal information of any nature concerning another employee to any outside source;” the dress code policy’s prohibition against wearing insignias and other message clothing; the prohibition in the solicitation policy against non-employees soliciting or distributing literature on adjacent property; and the social media policy. Provisions in the social media policy that prohibited disclosing personal or financial information of employees, writing blogs or other posts that would negatively impact the company’s reputation, posting photos of the workplace, and providing unapproved comments to the media were found to violate the Act because “employees would reasonably construe these provisions as preventing them from discussing their conditions of employment with their fellow employees, radio and television stations, newspapers or unions, or limiting the subjects that they could discuss.” Interestingly, the NLRB pursued this case after the company had revised all of the subject policies, except its dress code, with input from the NLRB’s regional office and distributed the revised policies to all employees before the hearing. Nevertheless, the ALJ found the revised policies violated the Act.

This case is another reminder of the NLRB’s expanding reach into non-unionized work places and the urgent need for all employers to review their policies and handbooks to insure compliance with the Act. Don’t wait until the NLRB has commenced action to review your policies. For more information regarding this or any another labor and employment related issue, please contact any of our Labor and Employment attorneys

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