You’re probably familiar with the legislative fight brewing over the proposed Employee Free Choice Act (EFCA). The EFCA debate has spotlighted a fact many employers don’t realize:
Nonunion employers must comply with requirements of the National Labor Relations Act (NLRA).
Employers that aren’t in the know run the risk that the National Labor Relations Board (NLRB) will file unfair labor charges for alleged violations of federal laws.
The source of the employers’ NLRA obligations is found in Section 7 of the law, which protects any employee’s right to engage with or on behalf of fellow employees in concerted activities for the employees’ mutual aid or protection. The NLRA does not make any distinction between employees who are union members and those who are not.
That’s why the NLRB has ruled in many cases that the law also protects nonunion employees. That means you can’t ignore just because your workplace isn’t a union one. To help you comply, here are the major traps to watch for:
You can’t fire an employee for discussing wages, benefits or other conditions of employment. Such discharges have been ruled to be unfair labor practices in many cases.
Generally, if the employee has been discussing common concerns of a group of employees about their employment conditions, the NLRB believes punishing the employee is an unfair labor practice.
On the other hand, the NLRB has refused to punish employers if the reason for the discharge was criticism of the company not related to wages or benefits or if the employee made maliciously false statements about the employer.
Don’t think you can simply adopt a confidentiality rule that prohibits employees from disclosing their salaries or other compensation details.
Confidentiality clauses and policies that restrain wage-and-benefit discussions may violate the NLRA if they:
- Explicitly restrict such discussions
- Can be reasonably interpreted to prohibit discussion
- Were adopted in response to union activities
- Have been applied by the employer to limit discussions.
Confidentiality policies need to be crafted carefully to ensure they are not so overly broad or—on the other hand—not so specific that they prohibit employees from discussing or disclosing information about employees, employment matters, or terms and conditions of employment.
Whether a confidentiality policy may violate Section 7 frequently depends on how the employer has defined “confidential information” that is restricted from disclosure.
The NLRA has considered it a violation when policies prohibited “employee speech” about employee grievance/complaint information, compensation or salaries, benefits, disciplinary information, and even dates of from employment.
Broad prohibitions against the disclosure of “any and all information” about fellow employees have been deemed NLRA violations when there was no showing that the employer provided an exception for discussions about wages or other terms and conditions of employment.
Like confidentiality policies, which are similar, nonsolicitation policies can also come under NLRB scrutiny, especially since the purpose of such a rule is normally to prohibit union activities at the workplace.
Generally, a nonsolicitation policy will be held invalid under the NLRA if it is too vague or broad.
If your company has a policy banning fraternization, you may also be at risk.
Because fraternization implies notions of uniting, associating, joining and cooperating with others, the NLRB has held invalid many broadly drafted nonfraternization policies. The reason: They could be reasonably interpreted by employees as prohibiting fraternal discourse about terms and conditions of employment.
Final note: Whenever you are dealing with policies and practices that might be covered by the NLRA, it’s always a good idea to consult with an experienced labor and employment attorney. Ask him or her to conduct a legal review addressing NLRA concerns.
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