August 30, 2012

In recent Labor & Employment Client Alerts, we have reported on initiatives by the National Labor Relations Board (NLRB) in the form of new rule-making, new case law precedent, and advisory memoranda from its Acting General Counsel. During the past year, the NLRB's Acting General Counsel has issued reports discussing social media policies that he considers unlawful, while the NLRB itself has issued rules attempting to speed up the union election process thereby facilitating the ability of unions to win, and requiring all private sector employers to post notices explaining workers' collective bargaining rights.

More recently, the NLRB has continued that trend, issuing decisions that have the effect of intruding more deeply than ever into the non-unionized workplace. The NLRB has justified these decisions by its mandate of protecting the rights of employees under the National Labor Relations Act to engage in concerted activities, such as organizing for mutual aid or protection or discussing terms and conditions of employment among themselves.

The following are examples of some of the more notable recent decisions under the National Labor Relations Act and the repercussions they pose for employers and their human resources personnel:

Instruction to Employee Not to Discuss Company Investigation Into Employee Workplace Complaint Held to Violate the Act

In a recent case, an NLRB panel majority held that an employer representative conducting a workplace investigation violated the Act by telling the complaining employee not to discuss the matter with other employees while the investigation was pending. According to the panel majority's reasoning, the employer's generalized concern with protecting the integrity of its investigations was insufficient to outweigh employees' rights to confer among each other. The panel considered it the employer's burden "to first determine whether in any give[n] investigation witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, or there [was] a need to prevent a cover up."

The NLRB's decision puts human resources professionals in a bind due to the uncertainty of knowing whether an instruction not to discuss while the investigation is pending will later be regarded as justified or not. To use a commonplace example, human resources managers investigating sexual harassment allegations routinely ask the persons they interview not to discuss the matter and, indeed, some employee handbooks state that. The reasons for doing so is to maintain the confidentiality of the investigation and to avoid distractions. Under the NLRB's standard, employers will have to worry whether this will be considered sufficient justification, or whether a more specific case by case evaluation is necessary to avoid an unfair labor practice charge.

NLRB Expands Its Regulatory Scope to Employee At-Will Disclaimers

Most employers have at-will employment disclaimers in their employee handbooks. These provisions typically state that either the employer or the employee may terminate the employment relationship with or without cause, require that the employee sign an acknowledgment of his or her at-will status, and explain that an employee's at-will status cannot be changed except in a writing signed by the company president. The purpose of such at-will provisions is to protect employers from claims by employees that they were promised employment for a defined period of time or that they could only be terminated for cause.

Recently, the NLRB's Acting General Counsel filed an unfair labor practice complaint against Hyatt Hotels alleging that the at-will disclaimer in its employee handbook violated the Act to the extent it required employees to acknowledge that their at-will employment status could not be altered except by a writing signed by management. The reasoning appeared to be that such an acknowledgement would have a chilling effect on employee rights to organize, because it could be interpreted by employees as banning them from choosing a union as a means of changing their at-will status. In another case involving the American Red Cross, an administrative law judge similarly so determined. Both cases settled, but they appear to reflect a view that may continue to prevail at the NLRB, and which has the potential of affecting most employers that have at-will disclaimers in their employee handbooks.

NLRB Strictly Limits Hospital Rules Prohibiting Off-Duty Employees From Accessing Facility

The NLRB has long had a standard allowing a hospital to maintain a policy prohibiting off-duty employees from accessing their facilities. The restrictions were that the standard could limit access only to the interior of the facility and other working areas; had to be clearly disseminated; and had to apply to off-duty employees seeking access to the facility "for any purpose."

Recently, however, the NLRB gave a very rigid interpretation of the "for any purpose" qualification. In the case in question, the hospital maintained a policy prohibiting off-duty employees from entering the interior of the hospital "except to visit a patient, receive medical care or conduct hospital-related business." As applied, the hospital occasionally allowed an off-duty employee to enter the facility to pick up a paycheck. Four off-duty employees entered the facility for non-work related reasons other than visiting patients or receiving medical care and were disciplined.

The NLRB found the discipline unlawful because in its view the "hospital related business" part of the policy was overly broad. In the NLRB's eyes, it gave the hospital "free rein to set the terms of off-duty employee access," and therefore unduly infringed on the employees' rights to engage in organizing or concerted activity. In effect, the NLRB seemed to be saying that as long as a rule limiting off-duty employees from accessing the facility had any exception that enabled the hospital to use its discretion in applying it, like "hospital related business," then it was improper under the Act.

While this decision involved a hospital setting, the same reasoning may apply to other types of employers. Employers should carefully re-examine their no-access policies to ensure that they are as narrowly tailored as possible. Allowing off-duty employees access to restricted areas even for potentially benign or casual reasons can potentially lead to exposure to an unfair labor practice if the employer does not similarly allow employees to access those same areas for organizing purposes.

If you have questions about how these recent NLRB actions may affect your company and its employees, please contact a member of our Labor & Employment group or your Much Shelist attorney.

This article contains material of general interest and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. Under applicable rules of professional conduct, this content may be regarded as attorney advertising.