The National Labor Relations Board was first established in the Great Depression to protect employees' right to unionize, overseeing union elections and correcting unfair labor practices.
However, in recent years the federal agency has taken a broader view of its mission and has begun looking at non-union businesses, focusing on what constitutes "concerted activity", that is, the rights of employees to discuss wages and working conditions with each other and the public, under Section 7 of the National Labor Relations Act.
Much of the Board's scrutiny has fallen on an employer's written rules, like the computer use and social media policies found in many handbooks, that it sees as tending to "coerce" employees to give up their Section 7 rights.
Simply maintaining the wrong policies may violate federal law.
Even if you are a non-union employer, several recent decisions may give you a little concern and "coerce" you to review your handbook.
Use of WORK E-Mail
In the recent case of Purple Communications Inc. and Communication Workers of America (December 2014), the board found that an employee with access to the employer's email has the right to use it, during non-working time, to discuss working conditions and even to organize.
It found that this kind of policy language was unlawful in that it tends to chill concerted activity:
"The Company's email system is for business use only. Employees may not use it for a) engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company, or b) sending uninvited email of a personal nature."
The Board didn't care that employees had other means to communicate with each other, such as their cell phones, texts, Facebook and outside email accounts.
It ruled that the company can only impose a restriction if it's "necessary to maintain production or discipline," a high standard to meet.
If employees are using the company's email system for concerted activity, employers have to be careful in monitoring that use.
First, you should have a policy that informs employees that their use of the company's computers and email is not private.
But you also need internal policies to be sure you are not focusing your monitoring efforts on these activities, that would be a separate violation of federal labor law.
Social Media Policy
In another NLRB case involving a Hooter's restaurant, a server (known as "a Hooter Girl") was fired for complaints posted on Instagram about a bikini contest that she felt was "rigged."
The Board reviewed the store's Social Media Policy and found that it violated federal labor law.
Among other things, the policy prohibited the following:
• "insubordination…lack of respect and cooperation…"
• Off duty acts that impact company reputation
• "any other action…threat to smooth operation, goodwill, or profitability of the business."
• Disrespectful remarks, discussing tips with guests, no profanity or "negative comments"
While these sound like general rules of discipline, the Board found that employees would "reasonably construe the policy to prohibit protected activity" because they were too vague.
In another case, even a dress code was challenged as a violation of employee rights.
It's a good idea for employers to have their handbooks reviewed every year, but especially if the laws have changed or if it has been several years since the last legal review.
Storrow is a labor and employment lawyer in Carlsbad. He can be reached at [email protected]
However, in recent years the federal agency has taken a broader view of its mission and has begun looking at non-union businesses, focusing on what constitutes "concerted activity", that is, the rights of employees to discuss wages and working conditions with each other and the public, under Section 7 of the National Labor Relations Act.
Much of the Board's scrutiny has fallen on an employer's written rules, like the computer use and social media policies found in many handbooks, that it sees as tending to "coerce" employees to give up their Section 7 rights.
Simply maintaining the wrong policies may violate federal law.
Even if you are a non-union employer, several recent decisions may give you a little concern and "coerce" you to review your handbook.
Use of WORK E-Mail
In the recent case of Purple Communications Inc. and Communication Workers of America (December 2014), the board found that an employee with access to the employer's email has the right to use it, during non-working time, to discuss working conditions and even to organize.
It found that this kind of policy language was unlawful in that it tends to chill concerted activity:
"The Company's email system is for business use only. Employees may not use it for a) engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company, or b) sending uninvited email of a personal nature."
The Board didn't care that employees had other means to communicate with each other, such as their cell phones, texts, Facebook and outside email accounts.
It ruled that the company can only impose a restriction if it's "necessary to maintain production or discipline," a high standard to meet.
If employees are using the company's email system for concerted activity, employers have to be careful in monitoring that use.
First, you should have a policy that informs employees that their use of the company's computers and email is not private.
But you also need internal policies to be sure you are not focusing your monitoring efforts on these activities, that would be a separate violation of federal labor law.
Social Media Policy
In another NLRB case involving a Hooter's restaurant, a server (known as "a Hooter Girl") was fired for complaints posted on Instagram about a bikini contest that she felt was "rigged."
The Board reviewed the store's Social Media Policy and found that it violated federal labor law.
Among other things, the policy prohibited the following:
• "insubordination…lack of respect and cooperation…"
• Off duty acts that impact company reputation
• "any other action…threat to smooth operation, goodwill, or profitability of the business."
• Disrespectful remarks, discussing tips with guests, no profanity or "negative comments"
While these sound like general rules of discipline, the Board found that employees would "reasonably construe the policy to prohibit protected activity" because they were too vague.
In another case, even a dress code was challenged as a violation of employee rights.
It's a good idea for employers to have their handbooks reviewed every year, but especially if the laws have changed or if it has been several years since the last legal review.
Storrow is a labor and employment lawyer in Carlsbad. He can be reached at [email protected]