Article Courtesy of David Farren of Jaburg | Wilk PC
Most employers and their legal counsel take pride in rules and policies that have become standard fare in the workplace. Employee Handbooks almost always contain, and certainly should contain, conspicuous provisions that expressly disavow the existence of any contract of employment or any intent to alter, amend or modify the parties’ at-will employment relationship. Handbooks are also typically stuffed with policies designed to protect an employer’s confidential information, discourage bad behavior and promote courtesy and professionalism in the workplace. These rules and policies make sense most of the time, and are perfectly legal most of the time.
Knowing what is perfectly legal, however, is not always easy. We lawyers don’t always know a rule or policy is suspect until a court or government agency tells us it is. And, although the National Labor Relations Act (NLRA) does not immediately come to mind when thinking about employment relationships outside of the labor union context, it should.
The National Labor Relations Board (NLRB), a federal agency that enforces the NLRA, has been actively promoting what it calls employees’ Section 7 rights to engage in “concerted activities.” Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” These Section 7 rights apply to all employees and prospective employees, regardless of their union status or affiliation.
Employees engage in Section 7 concerted activities when they act in concert with, or on behalf of, their fellow employees for their mutual aid or protection with regard to the terms and conditions of their employment. “Concerted” does not have to be one-handed. Even a single employee can engage in concerted activities by lodging complaints on behalf of all employees. An employer who interferes with, restrains or coerces its employees in the exercise of their Section 7 rights commits an unfair labor practice in violation of Section 8 of the NLRA.
So what does that have to do with Employee Handbooks? Read on!
David N. Farren is an attorney at the Phoenix law firm of Jaburg Wilk and works in employment law, antitrust, and commercial litigation. He can be reached at 602-248-1048 or at email@example.com.