Non-Unionized Employers and Employee Handbooks: The Low-Hanging Fruit at the NLRB

2014 has certainly been an interesting year at the National Labor Relations Board (“the Board”).  This year has seen the joint-employer rulings to the Northwestern student-athlete representation hearing decision out of Region 13 (Chicago).  In addition, potential repercussion of the Supreme Court’s Noel Canning decision, which voids every Board decision from January 4, 2012 to July 30, 2013, are still waiting to be felt.

Employers often think the Board deals mainly with unionized workforces.  However, Employers should not overlook or dismiss any concerns about Board action simply because of the absence of a union.  Here is a common example:

First, under the Board’s casehandling protocol, when a charged is filed against an employer alleging a violation of the National Labor Relations Act (“the Act”), the Board agent has liberty to request information related to the charging party’s employment.  As a matter of practice, Board agents are not limited and will not limit the request for evidence or EAJA letter to the apparent scope of the charge on its face.  In line with the duty to thoroughly investigate every charge filed, the Board agent will almost certainly request the Employer’s handbook, the low-hanging fruit, if you will.

Time and time again as a Board Field Attorney, I saw many charges that began as mere unlawful statements grow into amended and additional charges against the same employer because of overly broad rules in the employee handbook.  For example, a handbook policy will violate the Act if: 1) the employees would reasonably construe the language to prohibit concerted or organizing activity; 2) the policy was promulgated in response to union activity; or 3) the policy has been applied to restrict the exercise of employee rights to collective organize for mutual aid or protection.  After reviewing the employee handbook, the Board agent investigating the charge may discover language in the handbook that could potentially restrict an employee’s Section 7 rights.

With the constant and continuous changing face of our daily means of communication, human resource professionals’ attempt to keep up with the various ways information about a Company is publicly represented may overlook the potential Act violations within its policies.  What I have seen at the Board is that many of these policies addressing topics such as confidentiality or gossip are ripe to be found to be overbroad.

For example, with respect to social media, the Board has held that prohibiting the use of “participating in activities” such as Facebook on Company time may be unlawfully overbroad because employees have the right to engage in organizing and protected, concerted activities on the Employer’s premises during non-work time and in non-work areas.

Employers should be aware of these and recent Board decisions addressing overly broad rules.  Gone are the days of associating the Board strictly with unionized workforces.  The trend I saw at the Board was that the percentage of meritorious charges from non-unionized workforce was growing.  However, with adequate and proper guidance and pro-active measures, non-unionized employers can certainly reverse this trend.