Labor Law vs. Common Sense – NLRB Continues Targeting Non-Union Employers and Common Sense

It seems with each passing month the National Labor Relations Board or its Acting General Counsel opens yet another new front on its assault on non-union employers.  A trend has emerged which puts labor law in conflict with standard employment practices.  From hire, to control of the workplace and employer property, to the manner post-termination disputes are handled, the NLRB is directing employers to ignore conventional wisdom, and often times other legal mandates, to alter the way they deal with their employees.

Much attention has been given to the NLRB’s more direct pro-union organizing efforts like efforts requiring all employers to post an NLRB Rights Poster  and efforts to dramatically alter the timeframe and process for union elections through the new Ambush Election rules.

With both of those frontal efforts now struck down by various courts and on appeal, the NLRB is continuing its efforts in other ways.  While some are more benign like the NLRB’s stated "educational" efforts, including its new informational website targeting non-union employers, several decisions this year exposed another much more concerning trend – one which targets the common sense employment practices of many employers.  Specifically, in a string of decisions the NLRB has staked out positions which are at odds with conventional wisdom and guidance on a broad range of issues which literally cover the entire life cycle of non-union employment.

From hire, the Acting General Counsel has prosecuted the use of standard At-Will Policies, asserting after decades of unencumbered use that their mere maintenance may violate the National Labor Relations Act.   While we have written in detail previously about this, it clearly conflicts with the common sense approach many employers have relied on, and many employment counsel have advised on, as a most basic tenant and practice of a non-union employer.

During employment, the NLRB has targeted employers’ control of their workplace both on their physical property and beyond.  We have written previously about the recent though steady erosion of employers’ property rights and ability to control Off-Duty Access by employees.  The Acting General Counsel also has aggressively pursued employer Social Media Polices, going so far as to issue numerous memoranda and even a model policy, but still leaves more questions than answers on the line for employers seeking to protect their interests against cyber-slander and other inappropriate online activity.

In what could be the most troubling development, the NLRB is taking positions which could create a dilemma for employers who both want to conduct a proper harassment investigation to comply with the Civil Rights Act (and similar state harassment laws).  As previously discussed, the NLRB recently found that asking an employee to keep a harassment investigation confidential violated the Act.

In one of the more brazen decisions, the NLRB has taken odds with numerous state and federal courts and, seemingly, the US Supreme Court by deciding in D.R. Horton, Inc. that the Act prohibits employers from seeking arbitration agreements which include class action waivers.  This decision, which arguably conflicts with the pro-arbitration decision by the US Supreme Court in AT&T Mobility v. Concepcion, is likely destined to be decided by the Court, until then employers must make the decision of which authority to follow.

Each of these NLRB positions forces employers into a Sophie’s Choice on whether to adhere to the NLRB’s new and aggressive view of the National Labor Relations Act or to continue to follow tried and true practices and, more important, the directives of the EEOC, state law and even the US Supreme Court.

The question now is what is next and how can non-union employers prepare?

Management Missive

• Management should review its At-Will policies to see if they could be made less vulnerable to unfair labor practice charges.
• Management should review its Social Media, Off-Duty Access and Harassment/Discrimination Investigation policies, weighing the various risks and benefits of each.
• Management should review its arbitration agreements to determine the best practice after weighing the risks and benefits of class waivers.
• Management should stay vigilant as the NLRB’s efforts continue.