November 14, 2011 NLRB Posting Required
We want to alert you to an important new federal compliance obligation.
Effective November 14, 2011, the National Labor Relations Board (NLRB) will require private sector employers – both those with and without unions – to post an official government Notice advising employees of their legal rights under the National Labor Relations Act (NLRA), including the right to unionize and/or engage in strikes, picketing, and other protected concerted activity. The Notice also provides instructions for employees on how they can file charges against an employer and offers contact information for the NLRB.
At the same time, recent NLRB decisions expand employee rights and may call into question certain HR policies. In light of the NLRB’s heightened scrutiny, it is important for employers – whether fully unionized, partially unionized or union-free – to determine now whether any of their HR policies inadvertently could violate the NLRA. If they do, the new Notice may lead to circumstances that expose the fact.
Here are a few examples of policies that could result in unfair labor practice charges under recent Board decisions:
Many companies have broad, generic policies prohibiting harassment of co-workers. The NLRB has ruled that, if not carefully worded, these policies may be “reasonably interpreted” as improperly prohibiting employees from partaking in union organizing, conduct protected by the NLRA.
Some employers have policies prohibiting employees from speaking to the media without prior authorization by management. The NLRB has held, however, that some of these policies are unlawful. They “chill” employees’ statutory right to publicize their grievances, according to the Board.
Many companies have begun to implement social media policies prohibiting employees from disparaging the employer on social media sites. The Board has ruled that many of these policies violate the NLRA.
Confidentiality policies of numerous businesses prohibit employees from discussing their wages with co-workers or outsiders. Employers also may need to modify these policies to avoid running afoul of the NLRA. Indeed, the new NLRB Notice expressly advises employees that they have the right to discuss their wages with co-workers and unions. An organization’s failure to rescind or revise such a policy could be viewed as an unfair labor practice and be considered willful non-compliance with the Notice.
We also recommend that employers consider conducting management training now so that managers understand the law and the significance of the posting and do not unintentionally make unlawful statements when the Notice is posted. Since the Notice tells employees they are protected by federal law in raising work-related complaints, and engaging in strikes, picketing, and other protected concerted activity (which, based on recent NLRB decisions, can include public criticism of the employer or individual managers, among other things), management training also can help a company ensure that managers respond in a legal manner to such activities.
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We encourage clients to consider implementing the following steps before the Notice is required to be posted on November 14th:
(a) Review HR policies immediately for NLRA compliance;
(b) Determine an appropriate compliance plan, including identifying where and how the notices should be posted and whether the law requires internet or intranet posting or alternative language posting;
(c) Train supervisors on how to lawfully and appropriately respond to employee questions about the Notice and provide them with legal guidance on lawful communications;
(d) Develop a comprehensive preventive plan, which might include development or dissemination of a lawful corporate employee relations policy; and
(e) Develop a plan for responding in a lawful fashion to potential union or other protected concerted activity.
We are prepared to make recommendations to assist you in lawfully implementing these steps, if you choose to adopt such a program.
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