Sunday, February 24, 2013

The NLRB brings Goldilocks to the HR table

Now that the NLRB has settled into its role of providing oversight on employer handbooks and policies and procedures, using the filter of protected, concerted activity, the question confronting employers is how to draft language that accomplishes legitimate, business purposes and yet is considered legal under the NLRA.  Recent administrative law judge decisions involving Quicken and Countrywide, where policies were viewed as being to broad and either actually infringing on Section 7 rights or tending to chill the exercise of those rights, show that this is an ongoing concern.

The Quicken decision dealt with Proprietary/Confidential information and non-disparagement policies in the Mortgage Banker Employment agreement and found them to impact upon Section 7 rights.  The Countrywide decision found the company's arbitration agreement could be reasonably read by employees to prevent the filing of charges with the NLRB.  So, in light of the NLRB's broad view of the limited capacity of today's employee to understand the policy language and its intent, is a general disclaimer sufficient which states that nothing in the policy is intended to interfere or prevent employees from exercising their rights under Section 7 of the Act sufficient?  Apparently not.

The Acting General Counsel stated in one of his memos about social media and protected, concerted activity (OM 12-59) that such general disclaimers would not effective in curing the defects in overbroad policies since employees would not understand from such a disclaimer that protected activities are in fact permitted.  The Board does not seem to consider the context of the employer language. In an at will disclaimer, the context is whether or not the employer is establishing a just cause standard for termination.  The fact that an employee cannot be terminated in violation of a state or federal discrimination law is understood, or at least should be.  It would seem that the NLRB will only be satisfied if the employer removes any doubt that a particular policy or procedure will not impact directly or "chill" Section 7 rights.

Enter Goldilocks.  So if the employer policy is too vague, is the AGC's "fix" too strong?  Does an employer have to include an overview of Section 7 rights with examples of permissible protected, concerted activity?  Are employees as clueless as they are viewed by the NLRB?  In the era of Google, Facebook, and Twitter, if an employee has a question, is there any reason to think that the employee won't find the answer, like now?  I am pretty sure that Goldilocks would find a general disclaimer to be "just right."

Then Chair Liebman once referred to the NLRB as the "Rip Van Winkle" of agencies in her dissent to Register Guard.  Given the way that the Board treats today's technologically savvy employee, she may be right.  If not Rip Van Winkle, at least Chicken Little. 



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