Ask The Lawyer HUSH-HUSH FIRM’S SECURITY NEEDS MAY CONFLICT WITH EMPLOYEES’ RIGHTS UNDER NLRA
HUSH-HUSH FIRM’S SECURITY NEEDS MAY CONFLICT WITH EMPLOYEES’ RIGHTS UNDER NLRA
QUESTION: I am vice president of a small company that does some highly sensitive and confidential work for a government department. In order to make it more difficult for outside agencies or agents of other nations to access/identify our employees, we have a policy requiring all employees to refrain from posting their association with the company, from talking about the company, or from talking about the nature of their work for the company on social or other media. I am told our policy may be in violation of laws protecting union activity. What’s the bottom line?
ANSWER: While an employer is free to restrict an employee’s exercise of free speech in — and often out of — the work place, that right ends if the restrictions conflict with other rights, one of which is the right under the Section 7 of the National Labor Relations Act for employees to self-organize, “to form, join, or assist labor organizations … and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection …” These concerted activities can be read broadly to include comparing salaries, hours, or other conditions of employment.
Until last month, if a rule did not explicitly prohibit employees from engaging in activities protected under Section 7, the National Labor Relations Board (NLRB) would still find a violation if one of the following three factors existed: (1) employees would “reasonably construe” the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; (3) the rule had been applied to restrict the exercise of Section 7 rights.
In its December 14, 2017 decision and order in The Boeing Company and Society of Professional Engineering Employees in Aerospace, IFPTE Local 2001, the NLRB rejected the first of those three factors — what an employee would “reasonably construe” as interference with Section 7 rights — as failing to take into account legitimate justifications associated with a company’s policies and rules. In the Boeing case, the policy at issue banned camera-enabled devices, including cell phones, on company property. A rule that focused only on conjectural interference with employee’s rights, without consideration for the valid security concerns of the company was unworkable, the Board said.
The upshot is that when evaluating a neutral policy that could potentially interfere with the exercise of NLRA rights, the Board will now evaluate (1) the nature and extent of the potential impact on NLRA rights and (2) the legitimate justifications for the rule in order to “strike the proper balance between … asserted business justifications and the invasion of employee rights.”
In order to avoid running afoul of the law, your policy must be facially neutral, your employees must still have some avenue to engage in concerted activities, and your reasons for the restriction must be strong. In order to determine whether your rules will pass muster, you may wish to consult an attorney.
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By: Daniel A. Gwinn, Esq.