Non-Union Employers Have NLRA Risk Too
By: Trenam’s Employment Law Team
The National Labor Relations Act (“NLRA”) is a federal law governing collective bargaining and protecting the rights of workers to unionize. Because unions are uncommon in Florida outside of the public sector, many private employers never deal with union workers and may mistakenly believe that the NLRA does not apply in their workplaces. In fact, the NLRA applies to most private-sector workplaces, and one particular provision of the NLRA—Section 7—has sweeping implications for almost all employers.
Section 7 of the NLRA says that “[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157.
The National Labor Relations Board (“NLRB”), the federal agency charged with enforcing the NLRA, considers workplace rules that employees would reasonably construe to prohibit Section 7 activity to be unlawful.
Recent decisions by the NLRB have drastically broadened the scope of activity protected by Section 7, creating a minefield for employers as they try to craft fair policies that will govern a productive workforce. For example, in just the last few years, the NLRB has found that the following policies may violate Section 7:
- Prohibition of making recordings in the workplace without approval. The NLRB takes the position that a blanket anti-recording policy violates Section 7 because it restricts employees from making recordings of workplace conditions for their own mutual aid and protection.
- Requirement that employees maintain a positive working environment. According to the NLRB, such a rule would be reasonably construed to restrict the potentially controversial or contentious discussions that may occur when employees engage in organizing efforts, which are protected under Section 7.
- Prohibition of discussions of ongoing internal investigations. Although an employer may think it is protecting the employee(s) involved in the investigation, the NLRB has found that a blanket ban on discussing internal investigations could chill employees from seeking out information in support of their own defense.
- Restrictions on certain social media activity. In one case, the NLRB found that an employee’s comments on Facebook about a workplace promotional event were protected, in part because they were a continuation of a previous conversation between employees. In another case, the NLRB found that an employee engaged in protected activity when he “liked” another employee’s Facebook comment about their mutual employer. Although these decisions involved employee discipline rather than employer policy, employers should nevertheless be aware of the types of social media activity that the NLRB considers to be protected under Section 7 before creating policies that restrict employees’ online or social media activity.
To best limit liability under the NLRA, workplace policies should specifically state the business reasons for their existence. In some cases, a policy should explicitly carve out an exception for Section 7 activity. For more information about bringing your employment policies into compliance with the newest changes in Section 7 law, please contact your lawyer, or if you are not currently a client of our firm, contact a member of the Employment Law Group at Trenam Law.