Posted on / Updated on / in Blog & HR Compliance /

I recently presented material from our H1N1 Preparedness program to a group of Human Resources professionals and managers. As we discussed how employers should react in the event that employees ban together and refuse to work in the presence of a sick employee, a veteran Human Resources manager raised her hand and asked how non-union employers should respond.

This is a common mistake many employers make.  There is an assumption in the corporate world that employers that do not have established unions do not have to abide by the rules set forth in the National Labor Relations Act (NLRA).  If there is any one law regularly violated by even the most experienced HR professionals it is the NLRA; and it is often broken in written policy.

The most common violation is a written policy prohibiting employees from discussing their wages at the risk of termination.  Confidentiality policies may violate the NLRA if they restrict discussions among employees about employment conditions, grievances, wages and benefits, discipline, performance evaluation and other terms of employment.

Confidentiality policies must be carefully written so it is clear the intent is that no confidential internal business information becomes available to competitors.

Non-solicitation policies must also be carefully written so they do not prohibit union activities at the workplace.  Of course, this is precisely why most companies draft such policies.  The key is to establish the legal boundaries but not to make those boundaries so strict as to explicitly prohibit, or so vague as to be interpretedas prohibiting.  Policies must make a specific designation between solicitation activities between working hours and non-working hours.

Similarly, fraternization policies must also be reviewed and, in my opinion, eliminated.  For one, from an employee morale perspective, it’s not a great idea to tell employees they are prohibited from cooperating or associating from one another.   In terms of violating the NRLA, however, all employees have the right to “concerted activity”.  A concerted activity would be any activity by a group of individual employees in the pursuit of a common goal.   It even protects the activity of a single employee if that employee’s activity is in the interest of a group of employees, and not solely for his or her own interests.   The National Labor Relations Board website lists the following as examples of concerted activity:

  • 2 or more employees addressing their employer about improving their working conditions and pay;
  • 1 employee speaking to his/her employer on behalf of him/herself and one or more co-workers about improving workplace conditions;
  • 2 or more employees discussing pay or other work-related issues with each other.

The NLRA also protects any individual employee’s right to engage in union support, membership, and activities, as well as an individual employee’s right not to engage in union activities or in other protected, concerted activities.

So what do you need to do as an employer?  Become familiar with the National Labor Relations Act.  Too many employers fail to give this law proper weight because they feel it only applies to union environments.  Every employer should:

  • 1) Become familiar with Section 7 of the National Labor Relations Act. Know the employer obligations, and the employee rights.
  • 2) Review your policies and practices – both what is written and what you do. Be on the lookout for any explicit violations of the law, as well as anything that could be interpreted as violation of the law.

Regardless of the position your company takes in response to union activity, the NLRA has established laws intended to protect the rights of all employees so they can address workplace issues in a positive and effective manner.  Unfortunately, these same laws can catch well-meaning employers unaware and in violation of employee rights when there was absolutely no intent for harm.

For a review of your policies, practices, and company handbook call one of the certified human resources professionals at IntegrityHR.

Submitted by: Paula Agee, SPHR; Human Resources Consultant with IntegrityHR, Inc.

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about the author: Amy Letke

Amy Newbanks Letke, SPHR, GPHR, is the Founder of Integrity HR, Inc. Amy provides workplace solutions to improve performance, reduce liability and increase profits. She is passionate about helping other entrepreneurs and business owners achieve success.