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By BRUCE SARCHET
Littler Mendelson Law Firm
Astute business owners may claim that “employees are our most important asset,” but also recognize the employees present a legal liability. In the Central Valley today, employees are quick to bring legal claims alleging employment discrimination, failure to pay wages, and so on.Business owners and managers are aware of and take steps to prevent such claims from occurring.
However, even the most shrewd business owner today may not pay much attention to the great-granddaddy of all labor laws in the United States, the National Labor Relations Act (NLRA). Many employers think they do not need to be concerned about the NLRA because their employees do not belong to a labor union.
However, the NLRA does not just protect the rights of unions; it protects the rights of all employees, whether union-represented or not. The National Labor Relations Board (NLRB) recently has issued several decisions which directly impact operations at non-unionized businesses.
This article provides a brief summary of some of those decisions, along with a list of practical suggestions to reduce risk. As readers of this article might suspect, each factual situation faced by an employer is unique, and therefore this general discussion does not substitute for the advice of counsel.
The NLRA: Basic protections for workers
As a starting point, the NLRA protects workers who engage in “protected, concerted activity.” This includes conversations between co-workers about what is happening at the workplace. A comment such as “it would be great if we got a raise” is protected, and it is concerted (as it involves more than one employee). An employer could not discipline an employee for making such a comment to a coworker.
Most employers have adopted employee handbooks or internal policies and procedures. Such policies have come under recent scrutiny from the NLRB.
For example, employers are rightly concerned about their business reputation, and so many have adopted policies prohibiting employees from bad-mouthing the company in public. Many employers also have adopted social media policies, restricting the ability of employees to post items on Facebook, Twitter, etc. regarding company business. The NLRB considered such policies in cases involving Dish Network and DirecTV Holdings and found them to violate the NLRA, as they restricted the rights of employees to discuss workplace matters.
Internal investigations – asking for confidentiality
Employers today can expect to conduct internal investigations in response to a variety of employee complaints – sexual harassment complaints, for example.
In order to preserve the integrity of an investigation, many employers require that employees keep the matter strictly confidential, and impose discipline for a breach of confidentiality. In a case involving the Banner Health System, the NLRB found such a requirement violated the NLRA by limiting communications between coworkers. In a case involving Boeing, even the mere “recommendation” of confidentiality was found to violate the NLRA.
However, a confidentiality policy in the context of an internal investigation may be enforceable if it is imposed only on a case-by-case basis, after a specific finding by the employer that confidentiality is needed to preserve the integrity of an investigation.
In one non-union workplace, in the case of Three D, LLC (Triple Play), an employee was terminated after an online posting claiming that: “my supervisor is an “a**hole.” Another employee was terminated after he “liked” that comment. The NLRB ordered reinstatement of the employees, along with an award of back pay, concluding that they had been discharged for engaging in protected, concerted activity.
What’s a non-union employer to do? Several responses are suggested. First, the human resources function in the organization should be evaluated – is the company devoting enough time and resources to HR?
Second, employee handbook and employer policy language should be reviewed.
Third, supervisors and managers should be provided training regarding employee rights protected by the NLRA so that they can spot potential issues and obtain appropriate assistance when needed.
Fourth, each internal investigation should be considered and planned out separately.
Finally, all employee discipline should be given an extra-careful review.
Employees are protected by the NLRA, even if they have not chosen to form a union. Employers must understand and give due respect to the legal rights of workers. All business owners today should have a basic understanding of the rights protected by the National Labor Relations Act and effectively apply that knowledge in managing their workforces.