What a quagmire we find ourselves in. Actually, that the NLRB finds itself in. Although continuing to issue rulings and advice memoranda in a sort of free- and unfettered-looking way, the question of the NLRB’s authority to have issued everything since January 2012 is now beneath the gavels of the Justices of the Supreme Court. The argument is that President Obama had made illegal recess appointments to the NLRB, and, without the proper quorum, no lawful action could have been taken by the NLRB since then.
The Supreme Court agreed to take up the issue in the Fall, and just yesterday a large corporation in New York filed papers with the Supreme Court to essentially stop the NLRB from harassing the company on various union-election issues. Yet, the NLRB continues to chug along and do its thing, having recently taken action on three issues affecting the workplace and social media. Might as well stay up to date:
1. Can employees be prevented from discussing an internal complaint?
“No”, the NLRB continues to say. It recently issued an Advice Memorandum to provide further guidance on the so-called “confidentiality rule”. In that Memorandum, the NLRB re-affirmed that an employer “cannot maintain a blanket rule regarding the confidentiality of employee investigations, but must demonstrate its need for confidentiality on a case-by-case basis.” To be lawful, the company “must show more than a generalized concern with protecting the integrity of its investigation”, and instead must establish that need “in the context of a particular investigation that presents specific facts giving rise to a legitimate and substantial business justification.”
2. Can employees be prevented from disclosing “confidential” information?
“Depends what you mean by ‘confidential’”, the NLRB continues to say. Last month, the NLRB affirmed a ruling of an ALJ that Quicken Loans violated the law. Although acknowledging that “[t]he line between lawful and unlawful restrictions is very thin and often difficult to discern[,]” the company supposedly violated the law by: (1) including within its definition of “proprietary/confidential information” such things as non-public information about personnel, and employee phone numbers and addresses; and (2) maintaining a policy stating that employees may not, among other things, “publicly criticize, ridicule, disparage or defame” the company.
3. Can employees be prevented from doing a lot of e-mail?
“Not if you’re singling out protected employees”, says the NLRB. Also last month, the NLRB affirmed another ALJ ruling that found certain conduct by the Weyerhaeuser Company to be unlawful. Although the company’s limited policy prohibiting employee use of electronic media for other than business purposes, with some limited personal activities, lawful, the NLRB decided that company officials violated the law by warning union employees (more so than non-union employees) that they were engaging in an “unacceptable volume” of e-mails during work time.
Employer Take Away: What should you as an employer take away from this development?
What to do, what to do? It still seems that the NLRB is grossly overreaching in many areas, and we may now start to see many of those decisions start to come unraveled by those in the judicial branch. The NLRB now has to answer to the Supreme Court, and we are left to wait until the Court’s next term for some definitive answer as to which, if any, of the NLRB decisions from the past couple of years your company truly needs to respect.
So what does your company do in the meantime? Do you assume the NLRB’s recent decisions and guidance will have no force and effect, or do you make an effort to have your policies and practices comply?
Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.
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