Can You Forbid Discussions of Salary and Pay?

It’s all part of NLRB’s new expansive view of its role.

For insights about the overly aggressive NLRB and the recent court decision concerning the legitimacy of President Obama’s recess appointments, we spoke with Patricia Trainor, BLR’s senior managing editor, HR.

“There’s a very interesting situation at the NLRB now: A court has ruled that Obama’s interim appointments were invalid, so any actions the board has taken may be invalid as well,” says Trainor.

The administration disagrees, no surprise, and the NLRB says it is going to do business as usual. So the situation is uncertain at the moment. In any event, it’s helpful for HR managers to review what the NLRB has been up to.

Section 7 Rights

In recent years, the NLRB has taken an expansive view of Section 7 rights, says Trainor.  Section 7 of the NLRA includes the right to engage in concerted activities “for the purpose of collective bargaining or other mutual aid or protection.”  Importantly, Section 7 applies to all employees, whether unionized or not. 

Some Recent Rulings

Trainor offers the following examples of Board decisions:

Internal investigations. The Board has said that a generalized concern about the integrity of an internal investigation is insufficient to justify asking employees to refrain from discussing the investigation (which employers commonly do to encourage witnesses to come forward and cooperate).

The Board’s rationale:  The request impacts Section 7 rights.  An individualized assessment has to be made to determine if any witness needs protection, evidence is in danger of being destroyed, there’s a danger that testimony will be fabricated, or there’s a need to prevent a cover-up.

Are class action lawyers peering at your comp practices? It’s likely, but you can keep them at bay by finding and eliminating any wage and hour violations yourself. Our editors recommend BLR’s easy-to-use FLSA Wage & Hour Self-Audit Guide. Try it for 30 days … on us.

Off-Duty access. The Board has narrowed the circumstances in which employers can limit off-duty access to the workplace.  Off-duty access policies have to balance the rights of employers to control access to their property with employees’ right to communicate with coworkers at the workplace on their own time regarding the terms and conditions of employment. 

So, for example, an employer can’t say you can come to the workplace during nonwork time for a social event, retirement party, etc., but you can’t come during nonwork time to talk with coworkers.

Social media.  After lots of guidance, the NLRB issued its first decision on a social media policy and not surprisingly, found the policy infringed on Section 7 rights.  Specifically, the policy prohibited statements on social media that “damage the Company, defame an individual or damage any person’s reputation.”  “One thing that struck me about the ruling,” says Trainor, “was that the Board did not distinguish in its analysis between defamatory and the arguably ambiguous ‘damage.’”  However, the order itself referenced only the “damage” as violating Section 7. Key for the Board, there was no language restricting application of the policy.

Postings that criticize management. The NLRB affirmed an ALJ’s ruling that five nonunion employees were unlawfully discharged for social media postings that criticized management.

Courtesy policy. A court found a “Courtesy Policy” in an auto dealership’s handbook violated Section 7. The policy stated: “Everyone is expected to be courteous, polite, and friendly to our customers, vendors, and suppliers, as well as to their fellow employees.  No one should be disrespectful or use profanity.” 

Although this seems like a reasonable policy for a car dealership, Trainor says, the Board ruled that the policy could be reasonably interpreted by employees as forbidding protected activity.  And, nothing in the policy or handbook limited its application.

All you need to avoid exempt/nonexempt classification and overtime errors, now in BLR’s award-winning FLSA Wage & Hour Self-Audit Guide. Find out more.

Handbook disclaimers:  The Acting General Counsel issued a complaint alleging unfair labor practice based on a handbook “at-will” disclaimer.  An ALJ followed suit in another case.  The problem?  The disclaimers essentially said the at-will relationship could not be altered.  Therefore, employees could reasonably interpret them to mean that they could not alter the at-will relationship through unionization.

Fortunately, the Acting General Counsel then found two (seemingly similar) disclaimers were lawful.  He also said the law was unsettled in this area, so stay tuned for additional guidance on that issue.

Meanwhile, in tomorrow’s Advisor, more on what’s in store for compliance in 2013, plus an introduction to the handy guide that lets you find violations before the feds do.