A Federal Case

By Steve Peglar
The WhitneySmith Co.

Non-union shops should be wary of the National Labor Relations Act in writing policies

Texas is certainly not known as a hotbed of union activity, but even those organizations without union representation in their workforces should be aware that the way they develop and enforce their human resources policies may be directly affected by a federal law designed to protect employees’ rights to join and form labor unions.

Key components of the federal National Labor Relations Act significantly limit how strict an employer, even those without any existing labor union activity, may be in formally restricting an employee’s conduct in a surprising variety of ways.

Under the NLRA, employees have the right to organize in unions, join together to advance their interests as employees, and refrain from such activity. It is unlawful under the NLRA for an employer to interfere with, restrain, or coerce employees in the exercise of these rights. Many common human resources policies that an employer may choose to include in its employee handbook can potentially, depending on how they are written and enforced, be interpreted as interfering with or restraining employees’ NLRA rights.

Many employer policies that are common in the workplace exist in an attempt to somehow regulate the behavior and conduct of employees.

Even though we may generally consider such policies as reasonable, the National Labor Relations Board and courts may interpret some policies as unlawful and as limiting an employee’s ability to exercise his or her NLRA rights.

If a policy, for example, prohibits employees from discussing their wages with each other, it could be viewed as unlawful, because employees who may be lawfully engaging in union organization activity may need to discuss their wages as part of the process.

Or, if a policy attempts to limit what an employee may post on social media concerning the organization, this could be seen as interfering with an employee’s NLRA rights to engage in “concerted activity” (and talk with other employees about) the workplace or conditions of employment. Also, it’s important to note that even if an employer’s policy doesn’t violate an employee’s NLRA rights in an obvious way, the NLRB may still interpret it as being unlawful or otherwise improper if employees could reasonably believe that the policy interferes with their exercising their rights.

The General Counsel of the NLRB has issued guidance to employers relating directly to handbook development. In it, the NLRB was critical of “overbroad” policies that are not specific enough regarding what behaviors an employer intends to restrict. Even the most well-intentioned policies can come under critical scrutiny for being too general in their language.

For instance, a policy that states “employees may not engage in any action that is not in the best interest of the company” as part of a larger conflicts of interest policy, would likely be considered as being too general. A different version of this policy that includes specific examples of what types of actions would result in a conflict of interest, such as “holding an ownership or financial interest in an outside business” and “accepting gifts, money, or services from an outside business” would probably be considered as lawful.

Because of the need to avoid this potential over-generalization, employers are advised to be cautious when creating policies that attempt to put limits on employee behavior.Texas is certainly not known as a hotbed of union activity, but even those organizations without union representation in their workforces should be aware that the way they develop and enforce their human resources policies may be directly affected by a federal law designed to protect employees’ rights to join and form labor unions.
 

Key components of the federal National Labor Relations Act significantly limit how strict an employer, even those without any existing labor union activity, may be in formally restricting an employee’s conduct in a surprising variety of ways.

Under the NLRA, employees have the right to organize in unions, join together to advance their interests as employees, and refrain from such activity. It is unlawful under the NLRA for an employer to interfere with, restrain, or coerce employees in the exercise of these rights. Many common human resources policies that an employer may choose to include in its employee handbook can potentially, depending on how they are written and enforced, be interpreted as interfering with or restraining employees’ NLRA rights.

Many employer policies that are common in the workplace exist in an attempt to somehow regulate the behavior and conduct of employees.

Even though we may generally consider such policies as reasonable, the National Labor Relations Board and courts may interpret some policies as unlawful and as limiting an employee’s ability to exercise his or her NLRA rights.

If a policy, for example, prohibits employees from discussing their wages with each other, it could be viewed as unlawful, because employees who may be lawfully engaging in union organization activity may need to discuss their wages as part of the process.

Or, if a policy attempts to limit what an employee may post on social media concerning the organization, this could be seen as interfering with an employee’s NLRA rights to engage in “concerted activity” (and talk with other employees about) the workplace or conditions of employment. Also, it’s important to note that even if an employer’s policy doesn’t violate an employee’s NLRA rights in an obvious way, the NLRB may still interpret it as being unlawful or otherwise improper if employees could reasonably believe that the policy interferes with their exercising their rights.

The General Counsel of the NLRB has issued guidance to employers relating directly to handbook development. In it, the NLRB was critical of “overbroad” policies that are not specific enough regarding what behaviors an employer intends to restrict. Even the most well-intentioned policies can come under critical scrutiny for being too general in their language.

For instance, a policy that states “employees may not engage in any action that is not in the best interest of the company” as part of a larger conflicts of interest policy, would likely be considered as being too general. A different version of this policy that includes specific examples of what types of actions would result in a conflict of interest, such as “holding an ownership or financial interest in an outside business” and “accepting gifts, money, or services from an outside business” would probably be considered as lawful.

Because of the need to avoid this potential over-generalization, employers are advised to be cautious when creating policies that attempt to put limits on employee behavior.

Steve Peglar, SPHR, PI, SHRM-SCP, is vice president with WhitneySmith Co., a human resources consulting firm based in downtown Fort Worth.