NLRB Making it Difficult for Employers to Write Policies

 
Wednesday, August 29, 2012
 
The NLRB has recently been scrutinizing employer rules and policies.  The NLRB appears to be looking for policies to scrutinize regardless of any alleged improper application, and may well declare them unlawful even absent any evidence of unlawful enforcement. If the NLRB finds that an employee could “reasonably construe” an otherwise innocuous work rule in such a way as to limit that employee in pursuit of his or her rights under Section 7, the rule will be declared unlawful.

Below are a few recent decisions which illustrate how the NLRB is trying to regulate employer policies:
  • In American Red Cross Ariz. Blood Servs. Div., Case No. 28-CA-23443, an ALJ found the “at-will” provision in the employer’s employee handbook to interfere with employees’ Section 7 rights. The ALJ determined that an employee could reasonably construe the clause “I further agree that the at-will employment relationship cannot be amended modified or altered in any way” to require that the employee agree not to engage in any union organizing effort or enter any other agreement modifying the his or her at-will employment.
  • In Banner Health System, 358 NLRB No. 93, the NLRB found that an agent of the employer violated the Act when conducting workplace investigations by advising complaining parties to refrain from discussing the matter with coworkers while the investigation was ongoing. The NLRB opined that an employer may lawfully advise employees to refrain from discussing an ongoing investigation when it has a legitimate business reason that outweighs the employees rights under Section 7. The NLRB rejected Banner Health’s argument that its rule served to protect the integrity of the investigation, stating that an employer must first determine whether witnesses need protection, evidence is in danger of spoliation, or there is potential for a cover-up.
  • Most employers have now reviewed and revised social media policies in light of the attention given them by the NLRB.  (See the section herein on Social Media Policies)
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