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Upcoming changes in membership on the National Labor Relations Board (NLRB) may result in a board that's less aggressive with nonunion employers when it comes to enforcing protected concerted activity under the National Labor Relations Act (NLRA).
There are two vacancies on the five-member NLRB, which currently has two Democrats and one Republican. President Donald Trump will name nominees to round out the board, which typically has three members from the president's party and two from the opposing party. The Senate will vote on these nominees.
Nonunion employers are hopeful that once the board has a majority of GOP members, it will let them require confidentiality during workplace investigations without risking NLRA violations. A Republican-controlled board is likely to be more understanding of the need for such confidentiality requests and less supportive of nonunion employees who don't like confidentiality policies. Section 7 of the NLRA protects the right of employees who want to form and join unions and says that all employees have the right "to engage in ... concerted activities for the purpose of [their] mutual aid or protection." These rights are referred to as Section 7 rights or the right to engage in "protected concerted activity."
During the Obama administration, the NLRB aggressively enforced these rights, applying the act to a variety of policies and procedures common in the nonunion workplace.
The board, for instance, focused on nonunion employer confidentiality policies, taking the position that employees may not be required or even requested to maintain confidentiality during an internal investigation. But it is common practice for nonunion employers to ask employees to maintain confidentiality in an investigation. Confidentiality protects both the alleged wrongdoer and the alleged victim and benefits employers by preserving the integrity of the investigation. The NLRB under the Obama administration said that a nonunion employer request for employees to maintain confidentiality would be an illegal restriction on the rights of employees to discuss workplace issues among themselves.
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Proposed Equal Employment Opportunity Commission (EEOC) enforcement guidance on unlawful harassment suggests that an employer should protect the privacy of alleged victims, witnesses and alleged harassers in an internal harassment investigation and that supervisors must understand and maintain confidentiality of the complaint process. The EEOC has suggested that the NLRB and the EEOC should "confer, consult and attempt to jointly clarify and harmonize" the confidentiality rights and expectations in the internal investigation process (see the EEOC Select Task Force on the Study of Harassment in the Workplace report).
Social Media Rules
Social media is another area that the NLRB has focused on. The board has consistently ruled that employees' rights to engage in protected concerted activity extend to activity on social media. The board has likened social media communications to "water cooler conversations," applying the same rules used for conversations among employees gathered around the iconic water cooler. However, this ignores the reality that social media communications have the potential to cause far greater damage than the traditional water cooler conversation.
When considering protected concerted activity in the context of social media, the NLRB has ruled that employers may not prohibit:
A newly configured board led by Republicans might be more skeptical of social media serving as the present-day water cooler and take a less-aggressive approach on the application of the NLRA to social media. For example, it might take a more circumspect view of when "liking" the comment of someone complaining about working conditions on Facebook constitutes protected concerted activity under the law. A board led by Republicans also might define more narrowly when criticism of a supervisor on social media is protected by the law.
Employers should not attempt to prohibit employees' negative comments or complaints about working conditions. This is subject to current NLRB prohibitions and may negatively influence morale. Employers should instead focus on appropriate goals, such as prohibiting harassment, threats of violence and the disclosure of trade secrets.
Patricia Wise is an attorney with Niehaus Wise & Kalas in Toledo, Ohio, and a member of the Society for Human Resource Management Labor Relations Special Expertise Panel.
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