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The AR Group

The AR Group Key HR Issues in 2015 – National Labor Relations Board

In our last Blawg, we highlighted what we believe will be the Key HR Issues in 2015 and specifically addressed the none too surprising prominence of the Affordable Care Act and its continuing impact on businesses, large and small. In this week?s Blawg, we address the ways in which we anticipate the National Labor Relations Board will increasingly impact the manner in which employer policies should be drafted and implemented. The third and final Blawg in the series will outline our thoughts on how regulations governing the use of independent contractors will continue to affect how businesses staff to meet demand.

The NLRB will continue to aggressively enforce employee rights, particularly involving non-union employers.

Over the last few years, the National Labor Relations Board (NLRB) has increasingly made clear that it can and will take action to protect the interests of all employees, union and non-union alike. We expect the NLRB?s ubiquitous efforts to continue in 2015, as we anticipate that the agency will continue to aggressively target non-union employers in its enforcement of the National Labor Relations Act (NLRA).? Too few employers realize that the NLRA applies to all employers whether they have unions or not, and any time your non-union employees participate in ?concerted activity,? such as discussing their pay or complaining about their working conditions with other employees, their actions are protected.? Employers should give careful thought to their employment policies and human capital management practices in general. Of particular interest are social media policies, policies requiring confidentiality during investigations, conduct and behavior policies, and even at-will employment policies that the NLRB feels unduly restrict employees from discussing their terms and conditions of employment.

Email policies may present the biggest challenge to employers trying to comply with a recent NLRB ruling that strictly limits employer restrictions on email use at work, even if the email system is provided by the employer. Up until recently, the agency has allowed employers to prohibit non job-related solicitations sent on employer-provided email systems as long as the employers did so consistently and without discriminating against communications addressing terms and conditions of employment. However, more recently, the NLRB determined that an employer?s email policy prohibiting the use of email for anything other than business purposes is unlawful even if implemented consistently. (See Purple Communications, Inc., 361 NLRB No. 126 (December 11, 2014)). The NLRB summed up its new position by stating that: ?we adopt a presumption that employees who have been given access to the employer?s email system in the course of their work are entitled to use the system to engage in statutorily protected discussions about their terms and conditions of employment while on nonworking time, absent a showing by the employer of special circumstances that justify specific restrictions.?

Smart Tip: Review policies to determine if they invite a NLRB action.? Typically, the agency targets policies that can be interpreted to restrict employees? rights to engage in ?concerted activities? under the NLRA.? This means that any policy that appears to limit employees from discussing the terms and conditions of their work with other employees may be vulnerable. Pay particular attention to your email policy to ensure it does not limit employees? use of the email system to only business-related emails.