Despite recent defeats pertaining to their ambush election and notice posting rules, the National Labor Relations Board (“NLRB”) persists in its partisan agenda to tilt the playing field heavily against employers. Over the past few weeks the NLRB has issued two rulings that will impact restaurants in Georgia.
Most companies state clearly in their employee handbook that employment is on an “at-will” basis and that the at-will relationship cannot be modified absent the express written approval of a senior executive. According to the NLRB, however, such a provision is unlawful because it infringes on the employees’ rights to engage in concerted protected activity (under Section 7 of the National Labor Relations Act) for the purpose of changing their at-will status. The employees have these rights regardless of whether they are represented by a union or not. Alarmingly, UNITE HERE, the primary union that targets restaurants and hotels, is the instigator of the unfair labor practice charges that led to the NLRB rulings.
2) Keeping Internal Investigations Confidential
It is customary for employers to investigate internal complaints and to require employees participating in the investigation not to discuss the matter with his or her co-workers. But in a ruling that completely upends a standard human resource practice, the NLRB ruled that it is unlawful to require that employees refrain from discussing an investigation with his or her co-workers. The NLRB explained that such a rule violates an employee’s right to engage in protected concerted activity, which includes the right to communicate with co-workers about the terms and conditions of employment. Nonetheless, an employer may continue to enforce such a rule provided that it has a specific legitimate business justification, such as where a witness requires protection or evidence is in danger of being destroyed. Note, however, that a general concern with protecting the integrity of the investigation is not sufficient.
In light of these rulings, employers should review their employee handbooks to ensure that they do not contain overly broad policies. Employers can – and should – continue to include at-will provisions in their handbooks, but they must be drafted with the NLRB rulings in mind. Likewise, employers should examine their protocols for internal investigations and evaluate each one on a case-by-case basis to determine whether confidentially is required to adequately investigate the complaint, and if so, whether there is a sound legal basis for imposing such a requirement.