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The National Labor Relations Act (NLRA) covers
employees who are not represented by unions, as well as those who
are. Until recently, the NLRB, the federal agency charged with
enforcing the NLRA, has focused its attention on those employees
who are represented by unions, or who are seeking to be so
represented.Recently, however, the NLRB has signaled its intent to
broaden its focus and address issues that affect unrepresented
employees. Thus, the NLRB has become involved in the very topical
subject of social media policies and has signaled an intent to
"police" such policies to determine whether they fall
afoul of the NLRA. (See previous
Labor & Employment Law Perspectives: May 21, 2012) . On May
30, 2012, the Acting General Counsel issued a
report in which he outlined the agency's recent
review of several employer social media policies and reported on
one case where the NLRB concluded that the entire policy was
invalid because it interfered with the employees' rights to
"discuss wages and working conditions with
co-workers."
On June 18, 2012, the NLRB announced the launch of a Web
site that "describes the rights of employees to act
together for their mutual aid and protection, even if they are not
in a union."
However, in a move likely to cause considerable consternation
among many employers, the NLRB appears to be turning its attention
to "at-will" policies, intimating that such policies may
be invalidated. Last month, the NLRB's Acting General Counsel
observed that a policy containing a broad statement that an
employee will remain at will unless that status is changed by a
written document signed by the employer's chief executive may
violate the NLRA. The NLRB's Acting General Counsel observed
that the employee might conclude that even union representation
could not change his/her status and, therefore, seeking such
representation would be futile. Indeed, in the past several months,
the NLRB filed Unfair Labor Practice Complaints in Arizona against
two prominent employers, in each instance alleging that they
maintained "over-broad" at-will policies. In one case,
the Administrative Law Judge agreed that the employer's policy
did violate the Act and, in the second, the employer agreed to a
settlement that admitted the same.
The thousands of employers who have such policies face something
of a dilemma. First, the NLRB's prosecution to date has been
limited to Arizona and, moreover, the issue has yet to be decided
by the Board, much less the courts, where it is likely to have a
much rougher passage. As a result, many employers may decide to
adopt a wait and see approach. For those who decide to be more
proactive, there should be ways to revise the policy to make it
compliant, at least in the NLRB's eyes. For example, instead of
stating that the policy can be changed only by the CEO, it could
provide that it can be modified only by a valid, written agreement.
Regardless of whether or not there is a decision to take action at
this time, employers should be aware that a long-standing
cornerstone of the typical at-will policy is under attack.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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