The NLRB has continued its assault on garden-variety employment policies, issuing three decisions in recent weeks, each of which concluded that facially neutral employment policies violated employees’ rights to engage in protected concerted activity. The cases are:
- Flex Frac Logistics, LLC
- TT&W Farm Products, Inc.
- Costco Wholesale Corp.
To place this issue within a legal context (and for the uninitiated), the National Labor Relations Act (NLRA) grants all private-sector employees (unionized and nonunionized) the absolute right to engage in protected concerted activity, which includes, among other things, the right to discuss, between and among themselves, their wages, hours, benefits and other terms and conditions of their employment.
An employer cannot maintain a work rule that reasonably tends to chill employees in the exercise of that right.
What the NLRB did
The NLRB used this doctrine to invalidate the following neutral work rules:
- A rule prohibiting employees from using the employer’s electronic systems to “defame any individual or damage any person’s reputation.”
- A rule prohibiting employees from leaving during their shifts—either by walking off the job or leaving company premises—without permission.
- A confidentiality policy that defines “confidential information” to include “personnel information and documents.”
Perhaps most telling is the NLRB’s explanation, in Costco, of its decision invalidating a rule against defamatory language:
“[E]mployees would reasonably conclude that the rule requires them to refrain from engaging in certain protected communications…. [T]he Respondent’s rule does not present accompanying language that would tend to restrict its application. It therefore allows employees to reasonably assume that it pertains to ... certain protected concerted activities, such as communications that are critical of the Respondent’s treatment of its employees.”
Restrictions on restrictions
Under the guise of “protected concerted activity,” the NLRB is making it nearly impossible for employers to maintain any work rules that regulate what employees cannot say or do.
Consider the ruling of an NLRB administrative law judge in a case involving at at-will employment disclaimer in an employee handbook:
“The signing of the acknowledgement form is essentially a waiver in which an employee agrees that ... at-will status cannot change, thereby relinquishing [the] right to advocate concertedly, whether represented by a union or not, to change his/her at-will status. For all practical purposes, the clause ... premises employment on an em-ployee’s agreement not to enter into any contract, to make any efforts, or to engage in conduct that could result in union representation and in a collective-bargaining agreement, which would amend, modify, or alter the at-will relationship. Clearly such a clause would reasonably chill employees who were interested in exercising their Section 7 rights.”
I could apply that tortured interpretation to any work rule and reach the farfetched conclusion that it could deter employees from engaging in protected concerted activity.
The NLRA is supposed to concern itself only with work rules that reasonably tend to chill employees. Yet, these interpretations go well beyond the realm of reasonableness. They also demonstrate what happens when a federal bureaucracy interjects itself into an area that it demonstrably does not understand—the day-to-day operations of employers.
I wish I could whisk up a magical elixir to solve this problem. Alas, for the time being, we are stuck with the NLRB’s intrusiveness into the world of work rules, and the grave uncertainty that comes along for the ride.
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