Wednesday, 04 November 2015 10:36

Does your employment manual or policy violate Section 7 of the National Labor Relations Act?

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Are you familiar with the National Labor Relations Act (“NLRA”)? Do you think that the NLRA only applies to employers who have unions?  If you do, you need to think again.  Does your employment manual address email usage on company’s computers? Does your employment manual limit what employees can say on social media about your company?  Does your employment manual prohibit employees from discussing their salaries with other employees? If you answered yes to the last three questions, then you may be in violation of Section 7 of the NLRA.  If you discipline your employees for violating these policies, then you would be in violation of section 8(a)(1) of the NLRA which prohibits disciplining employees for engaging in concerted activity regarding their working conditions and wages.


    The NLRA does not just apply to unions.  Employees are protected in any communication they make regarding working conditions and their wages.  Section 7 provides as follows:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . .
29 U.S.C.A. § 157 (Emphasis supplied).In December 2014, a divided National Labor Relations Board (“NLRB”) held that employers may not prohibit employees from using the company email system on non-work time to exchange emails with other employees about concerted protected activity.  Purple Commc’ns, Inc. &Commc’ns Workers of Am. AFL-CIO, 361 NLRB No. 126 (December 11, 2014).  Concerted activity means acting with or on the authority of other employees, not on the employee’s sole behalf, or when the employee solicits other employees to engage in group action.  Individual complaints about an employee’s work situation are not for the mutual aid or protection under section 7.  The employers may prohibit such use of the company email if the employer could show that such a ban is necessary to maintain production or discipline.  The holding is also limited to employees who already have access to the email system and therefore does not require that access be given to employees who do not already have access.

    No employer wants an employer to say derogatory things about its company, its clients or customers any place, but especially not in the social media.  The NLRB has looking closely at employment policies that infringe on an employee’s section 7 rights to complain about working conditions and wages.  In Hispanics United of Buffalo Inc., 350 NLRB No. 37 (2012), the Board majority found five employees engaged in protected concerted activity when they engaged in a dialogue about another employee’s criticism of their performanceand also found that their subsequent firing for engaging in this dialogue violated section 8(a)(1) of the NLRA.  The Board considered the following four factors in finding a violation:
1)    Was the activity concerted within the meaning of section 7:
2)    Did the employer know of the concerted nature of the activity?
3)    Was the concerted activity protected by NLRA? and
4)    Was the discipline or discharge motivated by the employee’s protected, concerted activity?

The Board found that the discussion did not have to discuss the object or goal of starting concerted activity in order for the communication to qualify as protectedspeech, it was enough that it could be inferred.  Significantly, if an employee’s communication or post is not about working conditions or about more than themselves, it is not protected activity.  In Karl Knauz Motors, Inc., 358 NLRB No. 164 (2012), an employee’s post about an incident at the dealership where a 13 year old drove a Land Rover that was being test driven into a pond was not protected activity because it was just posted by one employee without any discussion of the terms or conditions of employment.

    The Office of General Counsel has found that the following employment policies would be too broad and ambiguous and would include section 7 protected speech:

  1.  “Don’t pick fights on line.”
    2.    “Do not make insulting, embarrassing, hurtful or abusive comments about other company employees online and avoid the use of offensive, derogatory or prejudicial comments.”
    3.    “Do not send unwanted, offensive, or inappropriate emails.”
    4.    “Material that is fraudulent, harassing, embarrassing, sexually explicit, profane, obscene, intimidating, defamatory, or otherwise unlawful or inappropriate may not be sent by email.”

All of these policies make sense if you are not interpreting them through a section 7 lens. But if you look at these policies as an employee who wants to engage in concerted activity you can see why the Office of General Counsel believes they violate section 7.  It is wise to review your employment manual to make sure that there is nothing in there that can be construed to prohibit section 7 conduct.

    Many employers do not want their employees talking about their wages with each other.  Some employers may have gone so far as to have a written policy that prohibits their employees from discussing their salary with each other.  If you have such a policy, written or unwritten, you are in violation of section 7.  In Jones & Carter Inc./Cotton Surveying Co, (2012) the NLRB Board found that the employer’s policy prohibiting employees from talking with each other about their salaries violated section 7 and the termination of an employee for violating this policy violating section 8(a)(1) of the NLRB.  Wage discussions are at the core of section 7 rights.  Taylor Made Transportations Services, Inc.,358 NLRB No. 53 (2012).  The Board will initially look at the policy to determine if it explicitly prohibits section 7 activity.  If it does not the Board will determine if (1) the policy could be interpreted by employees as restricting section 7 activity; (2) the policy was promulgated in response to section 7 activity; or (3) the rule has been applied to restrict section 7 activity.  If any of these circumstances apply, the policy will be found to be unlawful unless the employer can establish a substantial business justification for the policy that outweighs the employee’s rights.  Lutheran Heritage Village-Livonia, 343 NLRB No. 646 (2004).

Given the risk of violating section 7, this may be a good time to review your Employment manual or policy and determine if there are any provisions that could violate section 7 of the NLRA.  We would be more than happy to help you in any evaluation you believe is necessary.

Read 3254 times Last modified on Thursday, 05 November 2015 05:17
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