NLRB targets employee policies: Do yours stand up?

Many non-unionized employers believe the National Labor Relations Act - administered by the National Labor Relations Board, or NLRB, in Washington D.C. - does not apply to their workplace. They are wrong.

The NLRB's jurisdiction is broad and covers the great majority of non-government employers with a workplace in the United States. The NLRB's jurisdiction includes non-union businesses and even businesses in states such as Iowa with right-to-work laws.

There recently have been several NLRB decisions that have affected such employers.

The NLRB and its general counsel last year also issued a string of decisions and opinions on employee handbooks, dress codes, email and social media. The NLRB will be prohibiting employer policies that it believes would chill or even tend to chill employee rights under the Act.

For example, several decisions have called into question handbook language requiring 'courteous” communications between employees and restrictions on sharing company confidential information. The NLRB has stated these provisions are too broad because employees may want to have heated conversations over 'confidential” information, such as employee pay and benefits.

In social media, the NLRB also has been broadening its reach. Facebook, LinkedIn and Twitter are now being treated as the 21st century equivalent of the water cooler.

The NLRB has held that employers cannot ban negative comments about the company on social media postings unless narrowly drafted and without accompanying 'safe harbor” language that excludes discussions about wages, hours and other terms and conditions of employment. However, requiring appropriate business decorum in such communications still is acceptable. For further information, go to smgs.us/3k0b.

Then the NLRB in a major policy shift held that if an employer allows employees to use the employer's email system for personal purposes, the employees now have a right to use the email system - on nonworking time - to engage in activities such as forming a union and complaining about supervisors.

Employers are still permitted to monitor employee computers and emails for legitimate management reasons, of course.

Finally, several months ago, the NLRB issued multiple complaints against McDonald's and its franchises across the country arguing that both the corporate headquarters and the franchise could be held liable as a so-called 'joint employer,” making them both potentially susceptible to union organizing and collective bargaining.

McDonald's allegedly requires its franchisees to strictly follow certain rules and regulations regarding their employees, including worker hours and staffing levels. McDonald's argued that it should not be held responsible for employment decisions made by independent franchise operators.

At congressional hearings in January, however, U.S. Sen. Patty Murray, D-Wash., claimed such businesses want to have it 'both ways” by 'squeezing” the small business owners but escaping all liability for wages and working conditions.

The NLRB decision may have implications for other employers that have non-unionized facilities or otherwise subcontract, outsource or use temporary employment agencies.

Many non-union employers who considered themselves immune from the NLRB now may find themselves subject to its policies. This year will continue to provide further guidance from the NLRB for all employers, unionized or otherwise.

l Wilford H. Ford is with Lynch Dallas Attorneys at Law, wstone@lynchdallas.com