Workplace Law Tips:
Does Your Employee Handbook Violate the NLRA?
The National Labor Relations Act (NLRA) is an under-utilized law protecting union and non-union employee rights. Many employers do not realize that it applies to them, but the NLRA actually applies to just about every private employer whether or not your workplace is unionized. Section 8(a)(1) of the NLRA makes it an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the NLRA.” Section 7 rights include the rights of employees to discuss, debate, and communicate with each other regarding their employment terms and conditions of employment.
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Employers should be aware that their employee handbooks could be seen as violating the law if any handbook provision could reasonably be interpreted to dissuade employees from discussing work conditions. Below are several common employee handbook policies the National Labor Relations Board (NLRB) may consider to be illegal:
Arbitration: If the company arbitration policy requires employees to waive their right to a class action, or if it otherwise prohibits employees from filing a NLRB complaint in the event of an employment dispute, it violates federal labor law.
Confidential Information: Most employers have a policy that employees must not share confidential information. If the policy is overbroad and keeps employees from sharing personnel information or training materials, it may violate their right to discuss working conditions.
No Discussion of Wages: Any company policy prohibiting employees from discussing and comparing their wages violates the NLRA. Employees must be allowed to discuss working conditions, including wages.
No Solicitation/Distribution: Employees must be allowed to solicit during non-working time. Further, a policy prohibiting distribution cannot prohibit employees from distributing literature electronically while employees are in work areas during non-working time.
Non-disparagement: A provision that prohibits employees from saying negative things about the company, whether online or otherwise likely violates their right to discuss working conditions. The company cannot require work-related concerns to be resolved internally by speaking with management or HR.
Social Media: If the company social media policy says employees cannot discuss the company in social media, it may violate an employee’s right to complain about working conditions to coworkers and to the public.
Policies similar to these are surprisingly common in employee handbooks and often have no relevance to an employer’s day-to-day operations. Nevertheless, such provisions have the potential to “chill” an employee’s willingness to engage in protected discussions and thus may violate the NLRA, even if they are never enforced.
The labor board is advancing union and non-union employee rights by broadening its application of the NLRA with significant ramifications for employers. Companies should re-examine their employee handbooks, policies and procedures and have them reviewed by a labor and employment attorney. Ali Law Group can help you effectively navigate the NLRA’s Section 7 rights and the issue of unfair labor practice and many others that constantly arise in labor and employment law. Contact us today at 631-423-3440 or visit alilawgroup.com.