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Non-Unionized Employers: Your Policies May be Unfair Labor Practices

All employers should remember: Labor law applies to non-unionized situations as much as it applies if a union is in place. Two recent publications from the National Labor Relations Board (NLRB) have reasserted this notion: one relates to social media policy, the other to internal investigations. Most employers do not have unions, but most also have formal or informal policies and procedures regarding the use of social media (Twitter, Facebook, LinkedIn) and internal investigations (sexual harassment, theft, performance).

As a brief reminder, Section 7 of the National Labor Relations Act states:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3).

It says "employees", not "unionized employees". It says "other concerted activities for the purpose of...other mutual aid or protection". In a nutshell, the NLRB has been reaffirming the notion that employees have the right, notwithstanding employer policies to the contrary, to talk to each other about their jobs.

On May 30 of this year, the Acting General Counsel of the NLRB issued a report on social media policies.  Employers frequently post policies for their employees as to how they may use social media to communicate with each other and the outside world, whether about their jobs, the company, or otherwise. However, these policies may run afoul of an employee's Section 7 rights to freely talk about the terms and conditions of their employment with coworkers and third parties. At the end of the report, linked above, the NLRB provided a sample social media policy.

Similarly, on July 30, 2012, in Banner Health Systems, 28-CA-023438, the Board issued a decision affecting internal investigations.  Frequently, employers interviewing employees will ask that they not discuss the investigation with coworkers to avoid corrupting the investigation. However, the NLRB found that blanket policies prohibiting such confidentiality are illegal. Instead, the employer must analyze each investigation on a case by case basis to determine whether or not there is a specific justification in that case for confidentiality. It must be specific; it cannot be a general concern about protecting the nature of an investigation.

Employers must always remember that just because there is no union does not mean they cannot violate the National Labor Relations Act.  Employers should consult with an attorney to review their current policies to see how well they comport with the NLRB's requirements.

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