Law Sections

Some ‘Chilling’ Developments

National Labor Relations Board Takes Aim at Employer Policies

John S. Gannon

John S. Gannon

Recently, the National Labor Relations Board (NLRB) has been attacking workplace policies that are common in both union and non-union workplace settings.

Previous BusinessWest articles have discussed the NLRB’s intrusion into social-media polices and at-will disclaimers. Unfortunately, more common employer practices are under siege, including internal workplace investigations and policies and rules that limit off-duty employee access to the workplace.

 

Non-union Employers Are Fair Game

Employers are often surprised to learn that the National Labor Relations Act (NLRA) applies in a non-union environment. The NLRA is considered by many to be a federal law that regulates only employer-union relations. However, you may be surprised to learn that the law covers a wide range of employer activities, both in companies that are unionized and in companies where there are no unions at all.

In particular, Section 7 of the NLRA protects the right of all non-supervisory employees to engage in “concerted activities” for the purpose of collective bargaining or other “mutual aid or protection.” This gives employees the right to come together to discuss any terms and condition of employment, including wages, benefits, or working conditions. Employer actions that impede or “chill” an employee’s exercise of these rights violate Section 7.

 

 

Discussion of Internal Investigations

Employers often initiate a workplace investigation when an employee brings a report or complaint of misconduct to management. The first step is to interview the complainant and employees who may have witnessed the allegedly inappropriate or unlawful conduct. Employers often discourage employees from discussing the substance of these interviews with others, particularly to protect the integrity of the investigation.

Employers that routinely require employees to keep investigative discussions confidential might need to alter their practices. The NLRB recently concluded that a blanket rule requiring employee confidentially during internal investigations violates Section 7. According to the board, requiring employees to keep quiet during investigations conflicts with their right to openly discuss their working conditions with co-workers. Although the board recognized that employers may have a legitimate interest in keeping investigative discussions under wraps, this does not outweigh their employees’ Section 7 rights to engage in concerted activities.

The NLRB did, however, outline circumstances that could justify a request for confidentiality by an employer. To lawfully implement — and justify — a confidentiality request, employers should determine at the outset of an investigation whether confidentiality is truly needed. To make this determination, employers must examine whether: (a) witnesses are in need of protection; (b) evidence is in danger of being destroyed; (c) testimony is in danger of being fabricated; or (d) there is a need to prevent a coverup. Satisfying this standard is no small task, and failure to properly consider these or other factors could result in an unfair-labor-practice charge.

Employers should consult with labor and employment counsel before asking employees to keep the substance of internal workplace investigations confidential.

 

Employee Off-duty Access

Employers frequently institute policies prohibiting off-duty employees from entering the workplace. These rules help ensure employee or customer safety and ease administrative burdens on supervisors. They also have particular importance during union-organizing drives. Off-duty rules help to keep off-duty employees who might support a union from disrupting the workplace during non-working hours.

For more than 35 years, the NLRB has considered off-duty employee access rules to be permissible, as long as the restriction (a) limits access solely to the interior of the facility; (b) is clearly disseminated to all employees; and (c) applies to off-duty access for all purposes, not just union activity. However, in another controversial decision from the NLRB, the board determined that an employer policy prohibiting off-duty employee access to the workplace was unlawful.

In that case, a hospital restricted hospital employees from entering the interior of the hospital except to visit a patient, receive medical care, or conduct “hospital-related business.” Employees were occasionally permitted to return to work to pick up a paycheck under the hospital-related-business exception, but other than that, they were typically disciplined for entering the facility for non-work purposes.

The board took issue with the hospital-related-business exception to the hospital’s off-duty rule. It ruled that this exception gave management too much discretion to permit or deny off-duty employees to enter the facility. Conceivably, it could be used to limit union-organizing activities, but permit other activity at the employer’s discretion. This violated the NLRA’s stance on off-duty access.

Notably, this ruling was consistent with a recent decision where the board concluded that a rule permitting off-duty access to attend employer-sponsored events, such as retirement parties and baby showers, but barring other access, violated the NLRA because it was an impermissible chilling of the employees’ Section 7 rights.

 

Bottom Line

By taking aim at workplace investigations, off-duty access rules, at-will statements, and social-media polices, the board is clearly seeking to regulate employer practices that go beyond the traditional unionized environment. Employers need to carefully evaluate existing practices to ensure compliance with NLRA.

If you have concerns about how these decisions could impact your workplace, you should contact experienced labor and employment counsel for assistance.

 

John Gannon is an associate at the management-side labor and employment firm Skoler, Abbott & Presser, P.C.; (413) 737-4753; [email protected]

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