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NLRB Takes Aim at Non-Union Employer Policies

As a non-union employer, you may think that the National Labor Relations Act doesn’t apply to you. But the National Labor Relations Board thinks otherwise, finding even seemingly innocuous policies unlawful because employees might read them to restrict their exercise of protected rights, including the right to complain about working conditions and to join a union.

“Courtesy” policy found unlawful

The NLRB recently found unlawful an employer policy requiring a car dealership’s employees to be “courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees.” You might wonder how a policy requiring employee courtesy could violate the law. And you wouldn’t be alone. One NLRB member also took issue with the decision, noting that the NLRB majority had taken this policy completely out of context by parsing the policy’s second sentence – that employees should not be “disrespectful or use profanity or any other language which injures the image or reputation of the dealership” – to conclude that employees would construe the policy to prohibit protected activity, including complaints about working conditions. In effect, despite the policy’s laudable goal of encouraging employee courtesy, the decision subjects employers to second-guessing concerning the theoretical effect their policies may have on employee rights to engage in protected activity.

At-will policy found unlawful

As a non-union employer, you likely have an at-will disclaimer in your employee handbook. These disclaimers typically disclaim a contractual relationship and inform employees that you can terminate them at any time and for any reason which is not unlawful. An at-will disclaimer helps you to avoid employee breach of contract claims and makes explicit your discretion to terminate an employee without establishing cause.

But these policies have also come under scrutiny, reflected in a recent administrative law judge opinion finding an employer’s at-will acknowledgement form unlawful because it required employees to “agree that the at-will employment relationship cannot be amended, modified or altered in any way.” The administrative law judge found this language unlawful due to its chilling effect on employee rights to engage in protected concerted activity, including employee rights to engage in conduct which might lead to union representation.

Employers must examine policies given increasing NLRB scrutiny

These decisions reflect an increasingly aggressive NLRB enforcement posture, which could significantly impact non-union employers. Any attempt to discipline or discharge an employee for violation of these policies could result in NLRB sanctions, including the possibility that the NLRB could order reinstatement and payment of lost wages, not to mention the time and expense of litigating policy language. And even the mere issuance of such policies could result in an NLRB violation. Under this microscope, you must be proactive, examining your policies to determine your exposure to potential NLRB sanctions. Although the NLRB has expressed a willingness to hold non-union employers to heightened scrutiny, it has not deprived employers of all discretion in formulating policies and dealing with employees. Even in this environment, subtle policy changes can make a huge difference in helping to avert NLRB enforcement.

If you have questions about how these decisions may affect your non-union employment policies, please contact a member of Bingham Greenebaum Doll LLP’s Labor and Employment Practice Group.

DISCLOSURE REQUIRED BY CIRCULAR 230. This Disclosure may be required by Circular 230 issued by the Department of Treasury and the Internal Revenue Service. If this article, including any attachments, contains any federal tax advice, such advice is not intended or written by the practitioner to be used, and it may not be used by any taxpayer, for the purpose of avoiding penalties that may be imposed on the taxpayer. Furthermore, any federal tax advice herein (including any attachment hereto) may not be used or referred to in promoting, marketing or recommending a transaction or arrangement to another party. Further information concerning this disclosure, and the reasons for such disclosure, may be obtained upon request from the author of this article. Thank you.

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