The National Labor Relations Board & the Rock of Sisyphus

The ancient Greeks had unique ways of describing the punishments a wicked person might suffer in the hereafter. Sisyphus was the founder and first king of Corinth and was a really bad guy in the Greek world. Some of his many sins were murdering guests in his own house, seducing the wives and daughters of other men, taking pleasure in cruelty, betrayal of the gods, hubris, and deceit. When he died, the gods were angry and sent him to Tartarus in chains. Tartarus is a dark and murky place where the worst offenders go in the afterlife, located somewhere below Hades. His punishment was to roll an enormous boulder up a high hill and, just as he got it to the top, it would roll back down and he had to start all over again. Today, any task that is useless, difficult, laborious, unending and frustrating is called “Sisyphean.” One might make the case that attempting to comply with all of the myriad employment regulations falls in this category because just when we think we’re in full compliance, down comes the boulder and we have to start again. An attorney recently called this effort an “uphill battle,” thus inadvertently invoking Sisyphus.

The NLRB (National Labor Relations Board)

All of which brings us to the National Labor Relations Board. From a historical view, the NLRB has been involved mostly with union employers. More and more, however, the NLRB is engaging with both union and non-union employers on the basis of an Unfair Labor Practice about “protected, concerted activity.” This means that employees have the right to discuss their wages, benefits and working conditions among each other. If employers attempt to prohibit employees from doing so, the employees may file an Unfair Labor Practice charge.

So, employees have the right to discuss their wages, benefits and working conditions among each other and employers may not counsel, discipline or dismiss them for doing so, and may not have employment policies that may intimidate employees from exercising this right. A recent ruling by the NLRB addresses this issue directly and is causing a good deal of consternation among non-union employers because it seems to suggest that some employer policies need to be substantially revised, even policies that have been deemed in compliance for years.

In this situation, we are dealing with an NLRB ruling and not an actual court case. It does have certain implications for non-union employers but NLRB rulings can be changed, depending on who is on the NLRB and their particular opinions about employment matters. I have seen this happen often in the past.

Some Suggestions To Help Comply With The NLRB Regulations and Rulings

Social Networking Sites – This principle of “protected concerted activity” applies to employees at work all of the time, including while they are on duty, in the break room, in the rest room, and coming back and forth to work. It also applies when they are off duty on social networking sites. Employees have the right to talk about their wages, benefits and working conditions on Facebook, Instagram, Twitter (X), YouTube, WhatsApp, and other social networking sites. Socialpilot.com lists 22 of the most popular sites.

The problem is that sometimes employees post information that is critical of the employer or of management, sometimes very critical, and sometimes using bad or vulgar language.

As much as we would like for this not to happen, employers may not restrict what employees say on social networking pages. There are some exceptions. For example, if an employee engages in slander or reveals confidential information, this kind of behavior could be problematic. However, this is dangerous territory so it’s best to talk with your consultant or attorney before taking action. At Seay Management, our advice is to stay off the private social networking sites of your employees and, above all, do not allow supervisors and managers to “friend” employees on Facebook. And, we do not recommend that you give employees advice about what to post on their personal social networking sites.

Your Employee Handbook – At Seay Management, we have always said that your handbook should contain all the employment policies you need but none of the employment policies that could get you in trouble. Here are some examples of policies where you may want to exercise caution.

Some handbooks have a policy that reads, “Your pay rate is private and confidential and you may not discuss it or reveal it to other employees.” According to the NLRB, this policy restricts protected concerted activity so, on that basis, should be omitted from your employee handbook. Employees have the protected right to discuss their wages among themselves and employers may not prohibit employees from talking about their pay or revealing their pay rates to others.

Similarly, when investigating an employee complaint, we cannot require him or her to keep the investigation confidential and not speak to others about it. Employment investigations should be kept as confidential as the situation allows but, in most cases, we cannot restrict an employee from talking about it.

In the same vein, we may not restrict employees from circulating a petition, either in hard copy or digital format.

For these reasons and others, it is more important than ever to have full and open communications like a formal employee complaint procedure, an Open Door Policy, and an employee Opinion Survey every several years.

At this point, we are not recommending a full-scale revision of your employee handbook based on this latest NLRB ruling, but are recommending that you keep your ear close to the ground as these issues make their way through the system and that you remove any policy that might restrict employees’ rights to protected, concerted activity.

Severance Agreements – Some employers use severance agreements for some employees who leave, whether voluntarily or involuntarily. The NLRB is now challenging two provisions of severance agreements – (1) the confidentiality provision and (2) the non-disparagement provision. The confidentiality provision prohibits a person from discussing the amount of the severance pay and other elements of the agreement, and the non-disparagement provision usually prevents the person from making comments critical of the employer. The NLRB is taking the position that these two provisions violate the right to “protected concerted activity.” It is our opinion that your attorney should draft any severance agreement that you may decide to use.

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