NLRB Rejects Common Practices; What Is HR to Do?

Allen Smith, J.D. By Allen Smith, J.D. June 28, 2015

LAS VEGAS—“Everyone has always done it that way” isn’t a viable defense to an unfair labor practices charge, at least not with the current National Labor Relations Board (NLRB), according to Patty Wise, an attorney with Niehaus Wise & Kalas in Toledo, Ohio, and member of the Society for Human Resource Management (SHRM) Labor Relations Special Expertise Panel.

Routine employer practices—from at-will employment policies, to confidentiality provisions in investigations and bans on defamatory comments on social media—all have been rejected by the NLRB as unlawful, she said at a June 28, 2015, preconference workshop at the SHRM 2015 Annual Conference & Exposition.

At-Will Policies

In 2012, the board started scrutinizing at-will policies, Wise noted. The acting general counsel (AGC) for the board found that the language in them frequently looks too broad.

Employers often use standard language in handbooks for at-will policies, saying that no oral or written statements except by a chief executive officer altered the policies.
Employees might conclude from this language that they could not change their at-will status even if they voted for a union, which could have a chilling effect, according to the AGC. Workers might reason that they couldn’t vote for a union.

By 2014, the board still was scrutinizing at-will policies closely. It said that it believed the policies infringed on protected, concerted activity, Wise said, but management attorneys fought back.

“Right now, we can’t tell who wins” on the board’s position as the disagreement winds its way through litigation. In the meantime, while employers are left in limbo, Wise asked, what are they to do?

Keep the at-will language, she recommended, saying that it’s essential protection for when supervisors promise employees that they can stay in a job forever. “Do not change or weaken the policies,” she said, adding that the NLRB seems to have backed off its stance on at-will policies.

Confidentiality Provisions

Another common practice the board has challenged recently is HR’s routine practice, when conducting internal investigations, of asking the complaining employee and all witnesses to maintain confidentiality.

Wise noted that the board has ruled that seeking confidentiality is an illegal restriction on the rights of employees to discuss workplace issues among themselves, even when confidentiality is just a request and not a mandatory rule.

According to the board, in order for employers to request confidentiality, there have to be specific concerns about a lack of confidentiality, not just a generalized concern.

The board has listed the following as legitimate specific concerns:

  • Witnesses need protection.
  • Evidence is in danger of being destroyed.
  • Testimony is in danger of being fabricated.
  • A potential cover-up needs to be prevented.

“Keep these four handy, and apply any others,” Wise said, noting that the Equal Employment Opportunity Commission (EEOC) requires investigators of sexual harassment complaints to keep their investigations confidential. Try to comply with both the NLRB and the EEOC in this area, she recommended.

Michael VanDervort, executive director with CUE Inc. in Clayton, Ga., cautioned that the NLRB sometimes will ask for an employer’s handbook, even when it is not part of an unfair labor practices charge, and “jump in and tear the handbook apart.”

Defamatory Comments

The NLRB also has struck down a Costco prohibition on online comments “that damage the company, defame any individual or damage any person’s reputation, or violate the policies” in the handbook. Even though the language used was fairly common, the board felt the defamation wording was overly broad.

Policy language that the board has said would be permitted includes policy language prohibiting:

  • Malicious, abusive or unlawful behavior.
  • Profanity.
  • Any discourse against other employees which is injurious, offensive, threatening, intimidating, coercing or interfering.
  • Sabotage.
  • Sexual or racial harassment.

Wise recommended that employers try to identify what their goals are with social media policies. “Don’t try and stop employees from trash-talking,” she said. It won’t work and will create a culture of suspicion and surveillance, she remarked. “Employees have every right to be as negative as all get out,” she added.

Employers should also give thought too, Wise said, to whether they want to have a stand-alone social media policy. Rather than having social media in neon lights, aspects of social media might be incorporated into other policies, such as anti-harassment policies, she noted.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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