A New Year resolution for Iowa employers: Do your employment policies need a makeover in 2015?
Posted on 01/05/2015 at 11:53 AM by Melissa Schilling
As 2014 comes to an end and a New Year begins, Iowa employers may consider what they want to accomplish or change for 2015. For instance, is it your company's goal to become more innovative or productive? Is it your company's goal to make the workplace fun, lively, and challenging? Or, is it your company's goal to attract new talent throughout the organization? One New Year's resolution Iowa employers should not overlook in 2015 is reviewing your employment policies and practices to ensure compliance with the National Labor Relations Act ('NLRA'). In 2014, the National Labor Relations Board ('NLRB') aggressively injected itself into many areas of employment law and increased its efforts to charge non-unionized employers with violations of the NLRA. In doing so, the NLRB targeted employee handbooks and struck down a number of sensible, long-standing management rules and policies. Below is a summary of the NLRB's most controversial decisions in 2014 that impact the employment policies of both unionized and nonunionized employers.
Overview of the NLRB and the NLRA:
As explained in our November 4, 2014 blog, under the NLRA, all private-sector employees, unionized or not, have the right to act together to try to improve their pay and working conditions or fix job-related problems. This is called 'protected, concerted activity.' If an employer attempts to interfere, or interferes, with these rights, that employer has violated the NLRA.
Email is the Present Day Water Cooler
In one of the NLRB's most controversial decisions of 2014, the NLRB ruled that employees are now allowed to solicit union support using their employer's email. On December 11, 2014, the NLRB overturned a seven (7) year precedent concerning whether employees have the right to use their employers' e-mail systems for non-business purposes. In Purple Communications, Inc., 361 NLRB No. 126 , the NLRB held that employees now have the presumptive right to use their employer's email system, while on nonworking time, to engage in protected concerted activity, which includes, but is not limited to, the right to communicate about union organizing, plan union activities and complain about their supervisors. While the NLRB claims it 'carefully limited' this rule, this rule will significantly boost the ability of employees and unions to organize.
The End of Workplace Courtesy and Civility
Also in 2014, the NLRB and its administrative law judges ('ALJ(s)') issued several decisions that hinder employers' ability to govern basic workplace conduct, such as requiring employees to be courteous toward others and prohibiting disorderly conduct. For instance, in Hills and Dales General Hospital, 360 NLRB No. 70, the NLRB found three workplace rules contained in the Hospital's 'Values and Standard of Behavior Policy' unlawful, namely: (1) employees will 'not make negative comments about fellow team members [which included coworkers and managers];' (2) employees will 'not engage in or listen to negativity or gossip;' and (3) employees will 'represent [the Hospital] in the community in a positive and professional manner in every opportunity.' Similarly, in First Transit, Inc., 360 NLRB No. 72, the NLRB determined that the employer's workplace rule which banned 'discourteous or inappropriate attitude or behavior toward passengers, other employees, or members of the public,' was unlawful. Both of these cases involved nonunionized employers.
Social Media Policies Take a Hit
In 2014, employers also suffered a series of losses in NLRB cases challenging social media policies. For example, in Hoot Winc, LLC and Ontario Wings, LLC d/b/a Hooters of Ontario Mills, Cases 31-CA-104872 (NLRB Div. of Judges 2014), an NLRB ALJ determined that a Hooters employee who cursed at her co-worker in front of other employees and customers during a mandatory employee bikini contest and posted disparaging comments about her coworkers and managers on social media was wrongfully terminated under the NLRA. Along the same lines, in Lily Transportation Corp., CA-108618 (NLRB Div. of Judges 2014), an NLRB ALJ struck down the employer's social media policy, which prohibited employees from posting on social media 'disparaging, negative, false or misleading information or comments involving [the company].' Despite these decisions, there was one case the NLRB 'liked.'In Richmond District Neighborhood Center, 361 NLRB No. 74, the NLRB placed limits on what constitutes protected, concerted activity in the context of social media. Specifically, the NLRB held that a Facebook conversation between two employees was so egregious that it lost protection under the NLRA. For more information on this case, see our November 4, 2014 blog.
Dress Codes, Non-Solicitation Rules, and Policies Protecting Confidential Information
In addition to attacking rules concerning email, courtesy and civility and social media, the NLRB was busy in 2014 striking down dress codes, non-solicitation rules, and policies protecting confidential information. For instance, as discussed in our December 12, 2014 blog, an NLRB ALJ struck down the employer's dress code that prohibited 'clothing that displayed vulgar or obscene phrases, remarks or images which may be racially, sexually, or otherwise offensive and clothing displaying words or images derogatory to the Company.' In addition, in late November 2014, the NLRB held that Mercedes-Benz U.S. violated the NLRA by telling employees that they could not distribute union literature inside the employer's Alabama plant. The NLRB then ordered the employer to rescind its policy that prohibited "solicitation and/or distribution of non-work related materials by Team Members during work time or in working areas." The NLRB also continued its trend of invalidating confidentiality policies as unlawfully overboard. For example, in both Hooters and Lily Transportation Corp., the NLRB ALJs struck down the employers' confidentiality policies. In Hooters, the policy provided:
[t]he unauthorized dispersal of sensitive Company operating materials or information to any unauthorized person or party [might result in discipline up to, and including immediate termination.] This includes, but is not limited to, recipes, policies, procedures, financial information, manuals or any other information in part or in whole as contained in any Company records.
Take Aways: Given the fact that the NLRB will likely continue its aggressive approach in 2015, Iowa employers should consider whether their employee handbooks need a makeover. In particular, Iowa employers should see whether their employment policies contain specific rules that employees will easily understand and avoid broad language that employees could reasonably understand as prohibiting their right to engage in protected activity.
The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.
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