In the April 2016 ruling, the NLRB struck down that provision, among others. It upheld a ruling by an administrative law judge that found that rule, and several others, to be illegal. But the NLRB went even further and ruled that other handbook provisions were too broad.

The ruling has represented part of a trend, where the NLRB has found that many rules could limit union activity — even when employers never intended them to have anything to do with unions or to restrict workers’ rights. While that may change, any change could take some time. Meanwhile, employers need to determine whether their handbook provisions, which are designed to minimize risk, could actually get them in more trouble.

Rights

Congress enacted the NLRA in 1935 to “protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, businesses and the U.S. economy.” Specifically, under Section 7 of the NLRA, concerted activity such as the ability to discuss wages and working conditions is protected.

Employees are guaranteed “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.” Section 8(a)(1) of the NLRA makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.”

In the T-Mobile decision, the board found that employees would “reasonably construe the rule to restrict potentially controversial or contentious communications and discussions, including those protected by Section 7 of the (NLRA), out of fear that the (employer) would deem them to be inconsistent with a ‘positive work environment.’”

What employers need to do

Under Trump’s White House, the pendulum may swing back to being more business-friendly. However, any shift is likely to come slowly and incrementally.

One consideration is the makeup of the board. At full strength, the NLRB has five members who serve five-year terms, with one member’s term expiring every year. The president appoints the members, who are confirmed by the U.S. Senate. However, Obama’s choices have been controversial. In 2014, the U.S. Supreme Court, in a unanimous ruling, found that Obama’s January 2012 recess appointments of three NLRB members were unconstitutional.

Currently there are only three members on the board — Democrats Mark G. Pearce and Lauren McFerran and Republican Philip A. Miscimarra. That means Trump will have the opportunity to appoint two members.

Until the political and regulatory situation becomes clearer, employers should assume that the NLRB will continue its current enforcement emphasis. There are several steps employers should take:

Thoroughly review current policies. Companies should take a close look at their current handbook rules, with an eye toward whether they could possibly infringe on Section 7 rights. Provisions may not have anything to do with union activity. In fact, companies may not even be unionized, but even nonunion employers must abide by the NLRA.

Experienced human resources staff and knowledgeable legal counsel should be a critical part of the team that reviews the handbook and suggests any changes. Legal advice will be particularly important as companies try to develop policies that protect employees from harassment while not violating the NLRA.

Be specific. Language that is too vague or broad can get companies in trouble. As T-Mobile found out, even words about creating a “positive” work environment may not pass muster. While employers may only want to create a professional workplace, the federal government may decide rules could translate into bans on protected activity.

When it comes to confidentiality agreements, handbook rules should stress that it’s acceptable to discuss wages and other working conditions with fellow employees. If an employee claims to be discussing confidential information as a whistleblower, companies need to proceed particularly carefully. Some government regulations, such as the Sarbanes-Oxley Act, require employees to report illegal activity. HR and legal counsel should become involved immediately if there is a possibility that whistleblower allegations could be raised.

With Donald Trump in the White House and the Republicans in control of Congress, the NLRB may take a more business-friendly approach in the future. But in the meantime, employers need to continue to make sure that nothing in their handbooks could possibly be interpreted as violating Section 7 rights and possibly be viewed as anti-union.

Richard D. Alaniz is senior partner at Alaniz, Schraeder, Linker, Farris, Mayes LLP, a national labor and employment firm based in Houston. His 30-year work history includes stints with the U.S. Department of Labor and the National Labor Relations Board. He is a regular writer on labor and employment law, and conducts frequent seminars to client companies and trade associations across the country. Questions about this article or requests to subscribe to receive Alaniz’s monthly articles can be addressed at (281) 833-2200 or ralaniz@alaniz-schraeder.com.

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