In 2016 the National Labor Relations Board maintained its generally pro-union, anti-employer stance in ways that affect both unionized and non-unionized employers. The Board currently has two openings, which, once President Trump fills, will result in a pro-business NLRB. However, due to the Board’s rules, employers might not see immediate improvement. After all it wasn’t until years 7 and 8 of Obama’s presidency that major pro-union initiatives were implemented. Therefore, employers in 2017 (and likely beyond) will be forced to deal with the extreme pro-union rulings from 2015 and 2016. But once the pro-business Board can start unraveling current anti-business rulings, here is what I expect will happen to workplace policies that have been in the crosshairs of the pro-union NLRB.
All employers, regardless of union status, should remain (or become) aware of the NLRB’s General Counsel’s position that many handbooks and other employer policies are unlawful. For reference, see his March, 2015 GC Memorandum 15-04. This guidance gives examples of good and bad language for policies on keeping employer information confidential (broad policies are deemed unlawful, because employees must be allowed to discuss wages and other issues of mutual interest), professionalism, media contact (employees have the right to talk to the media on their own behalf or on behalf of others), use of company logos (employees are allowed to use logos and marks for their own, non-commercial purposes), conflicts of interest, and recording and photography at work, which the General Counsel says must be permitted on non-work time when employees are engaged in protected activity. I do not expect changes to these to occur for a long time since many of the General Counsel’s theories are now supported by recent NLRB decisions.
Similarly, an employer rule prohibiting “non-approved individuals’ access to information or information resources, or any information transmitted by, received from, printed from, or stored in these resources” without prior written approval was unlawful because it would prevent employees from sharing, with their union representatives or their co-workers, information relating to work conditions stored on the information systems. See, T-Mobile USA, Inc. The Board also struck down bans on employees using information or communication resources in ways that were “disruptive, offensive, or harmful” or to “advocate, disparage, or solicit for political causes or non-company related outside organizations.”
Employers everywhere should take 2017 to audit all written policies and procedures in light of this and other recent decisions centering on language the Board finds to impose impermissible restrictions on employee sue and access to email and information systems.
Matt Austin who owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.