The National Labor Relations Board, led by a Democratic majority for the last several years, has thrown a wide net over the scope of protected employee conduct, reaching beyond the traditional unionized workplace. In June 2012, the NLRB announced the development of a new Web page (www.nlrb.gov/concerted-activity) specifically dedicated to describing “the rights of employees to act together for their mutual aid and protection, even if they are not in a union.”

Similarly, the board continues to seek a requirement that all employers, both unionized and nonunionized, post a notice in their workplace advising employees of their protected rights under the National Labor Relations Act. The board has never before waged an information campaign to highlight these specific rights.

The NLRB is also targeting overbroad employer policies and handbooks. Based on a flurry of recent cases, employers may wish to consider paying special attention to any workplace rules governing social media, pay, e-mail, behavior, conflicts of interest, and disciplinary policies and consider whether any policy or handbook language could potentially discourage employees from exercising their rights under the NLRA.

The mere maintenance of an unlawful rule may violate the act if the rule is likely to interfere with, restrain or coerce employees in the exercise of guaranteed rights, including the right to discuss terms and conditions of employment with third parties and co-workers.

Recent cases have examined the following provisions and found them to be unlawful:

•A provision that prohibits making “disparaging or defamatory comments about the employer, its employees, officers, directors, vendors, customers, partners, affiliates, or our, or their, products/services” through the use of social media.

•A provision restricting employees from disclosing information to the media, including the press, print, and broadcast and their electronic versions and associated web sites, regarding the employer and its activities without the prior approval of the company.

•A provision prohibiting employee contact with government agencies and employee disclosure of governmental agency-initiated communications to the company.

•A provision prohibiting employee disclosure of company investigations involving employer policies, practices, expectations and any applicable law or any other behavior deemed relevant to employment with the company.

•A provision prohibiting employees from using personal social media with company resources or on company time.

•A provision defining insubordination as undermining the company, management, or employees.

•A provision stating that the at-will employment relationship cannot be amended, modified or altered in any way.

•A provision prohibiting discussion of private matters of employees, including sick calls, leaves of absence, FMLA call-outs, ADA accommodations, workers’ compensation injuries, and personal health information.

•A provision restricting the disclosure of payroll, confidential information, financial information, credit card numbers, Social Security numbers, or employee personal health information without prior management approval.

•A provision that prohibits leaving company premises during a work shift without permission, walking off the job, or engaging or participating in any interruption of work.

Chilling Rights

According to the National Labor Relations Board, any one of these provisions could be reasonably interpreted as an attempt to chill employees’ rights to engage in protected concerted activity, as they were not narrowly tailored and failed to adequately describe the prohibited conduct or speech.

Given the board’s trend over the last several years, employers may wish to review their policies and make sure that they are narrowly tailored to protect the company’s legitimate business interests and do not restrict employee rights under the NLRA.

Employers may wish to consider a provision clarifying that the policies “do not otherwise impact an employees’ right to collectively bargain or engage in concerted activities regarding the terms and conditions of employment.” The policies may wish to provide examples, where necessary, and not discourage concerted activities.

Specifically, employers may wish to consider not banning employee discussions regarding issues such as wages, pay practices, benefits, and complaints to management that could be perceived as protected, concerted activity under the act.•