With the specter of change looming over federal labor law in the form of the Employee Free Choice Act (EFCA), many non-union employers have had occasion to consider the National Labor Relations Act (NLRA). Regardless of whether the EFCA passes, non-union employers should maintain a healthy interest in the NLRA for one, simple reason: every employee has rights under it, irrespective of whether the workforce is unionized.

Under the NLRA, all employees have the right to self-organization; to form, join or assist labor organizations; to bargain collectively; and engage in other concerted activities for the purpose of "other mutual aid or protection." These rights are commonly referred to as "Section 7 Rights." The language of Section 7 of the NLRA makes clear that these rights exist independently of whether employees are actually organized. Consequently, employers that have never had a unionized workforce can still violate these rights if not sensitive to how they can be impacted in a non-union setting.

Employers may not interfere with, restrain or coerce employees with respect to their Section 7 rights. Additionally, the NLRA prohibits employers from discriminating against employees for exercising their Section 7 rights. These provisions can combine to create liability for uninformed employers. Employer policies that are "likely to have a chilling effect on Section 7 rights" may be viewed as an unfair labor practice, even absent evidence of enforcement.

In other words, an employer policy can violate the NLRA on its face, even if it has never served as the basis for employee discipline. This danger can be particularly acute with respect to several common employer policies.

Shhhh, It's a Secret!--Confidentiality Policies

Many employers consider the wages paid to employees as confidential, proprietary information that should not be shared by an employee with a co-employee. Many employers likewise prefer that their employees maintain confidentiality as to disciplinary matters. To maintain the confidentiality of these issues, many employers institute confidentiality policies. While acceptable in the abstract, if not carefully drafted confidentiality policies can be facially violative of the NLRA.

Confidentiality policies can violate the NLRA because employees' Section 7 rights encompass the right to effectively "communicate with one another regarding self-organization at the jobsite," including by discussing the terms and conditions of their employment. Matters related to wages and discipline are quintessential "terms and conditions" of employment. Consequently, an unqualified rule barring wage discussions among employees, without limitations as to time or place, is presumptively invalid.

Additionally, a confidentiality policy need not explicitly prohibit employees from discussing wages, discipline or other working conditions in order to violate the NLRA. Instead, the issue is whether employees could reasonably interpret the policy as creating such a restriction. For example, in Cintas Corp. v. NLRB, 482 F.3d 463, 466 (D.C. Cir. 2007), the employer's handbook included the following provision:

We honor confidentiality. We recognize and protect the confidentiality of any information concerning the company, its business plans, its partners, new business efforts, customers, accounting and financial matters.

The handbook also included a discipline policy, pursuant to which employees could be sanctioned for any unauthorized release of confidential information. The policy was held to violate the NLRA because employees could reasonably interpret the word "partners" to apply to employees, and thereby believe that they were restricted from discussing wages or other matters with others.

In order to avoid inadvertently violating the NLRA, confidentiality policies must be tailored so as not to imply that they prohibit employees from discussing working conditions with each other. Generally, this can be accomplished by utilizing language that does not include employee information amongst that which is considered "confidential" under the policy.

Despite these restrictions, employees do not have carte blanche to disclose or distribute confidential information simply because it touches upon wages or other conditions of employment. Where an employer compiles information pertaining to wages and compensation and maintains that information as confidential, an employee may be precluded from disclosing the resulting compilation. Put simply, "a rule which merely forbids employees with access to confidential information to disclose it without the company's authorization is valid even though an incidental effect may be to make it harder for the union to organize the company's workers," whereas a "company cannot go further and forbid the disclosure of nonconfidential information as well."

The Water Cooler is Fair Game--Solicitation and Distribution Policies

The right to solicit employees to join a union is encompassed within the right to self-organization explicitly set forth in Section 7 of the NLRA, which would be somewhat meaningless without the ability to solicit. That right, however, is balanced against an employer's right to maintain discipline in its workplace. Consequently, employers may prohibit solicitation under certain circumstances, but an overly broad nonsolicitation policy can violate the NLRA even when applied by a non-union employer.

In order to create an appropriate nonsolicitation policy, an employer must limit the policy's application to employees' conduct during working time. Although seemingly straightforward, the law in this regard requires precision that is not intuitive. For example, policies that prohibited solicitation during "company working hours," "paid working hours,"and "on the company's time," have been struck down because they could be interpreted as barring solicitation during the entire time an employee was clocked in, including during breaks. On the other hand, both courts and the National Labor Relations Board (NLRB) have held that prohibiting solicitation on "working time" appropriately conveys that solicitation is permitted when the employees involved are not actively working.

While nonsolicitation policies can lawfully prohibit solicitation during working time, they can still violate the NLRA if vague restrictions are placed on where solicitations may occur. Some industry-specific exceptions to this general rule exist. For example, retailers may prohibit solicitation on the selling floor where customers are generally present because such conduct could be disruptive to the employer's business. A similar exception has been recognized in the health care industry in relation to "immediate patient care areas." Even in these industries, a policy that broadly prohibits solicitation in "public areas" would violate the NLRA.

Applicable precedent regarding solicitation is generally limited to oral communications. Employers have greater leeway with respect to the distribution of materials. That is, if an employer has legitimate concerns regarding the threat of litter in work areas, the distribution of written materials may be prohibited within work areas.

New Pitfalls in a Digital Age--Electronic Usage Policies

Many employers provide their employees with access to the Internet and a company supported e-mail address. Along with the greater use of e-mail and computers, however, has come an increase in the number of ways by which employees may communicate with one another. In order to maintain control over the electronic medium, to temper expectations of privacy, and to make clear that harassing or offensive usage is prohibited, many employers enact electronic usage, or e-mail usage, policies. But such policies often limit the ability to communicate in some way. The question then arises -- can overly restrictive electronic usage policies violate the NLRA?

This question was recently answered by the NLRB in The Guard Publishing Co., d/b/a Register Guard, 351 N.L.R.B. No. 70, 2007 WL 4540458, *2 (Dec. 16, 2007). The policy at issue in that case prohibited employees from using the company's e-mail system "to solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations." Nevertheless, the employer was aware that employees were using company e-mail for personal matters, such as making baby announcements, offering dog walking services or selling tickets to sporting events. There was no indication that the employer allowed employees to use the email system for outside organizations, except for the United Way, which the employer supported through a charitable campaign. The NLRB ultimately ruled that the employees did not have a statutory right to use the employer's e-mail system for Section 7 purposes.

It is important to remember that the NLRA also prohibits discrimination and retaliation. Consequently, an electronic usage policy cannot be discriminatorily applied. As a result, employers must use care to draft electronic usage policies that prohibit use designed to further not only union activities, but all activities of a similar nature. Specifically, employers would be wise to distinguish between use for charitable and noncharitable functions, as well as for personal and commercial functions. Making clear distinctions will be important, as vague prohibitions will open the door to discrimination claims under Sections 8(a)(1) and 8(a)(3) of the NLRA.

Under Register Guard, electronic usage policies can be as restrictive as employers see fit, but they must be applied nondiscriminatorily. While the Board's ruling in Register Guard is the order of the day, it is widely viewed as subject to attack by the Obama administration. Until it becomes clear that the Register Guard ruling will survive future scrutiny, employers would be wise to structure electronic use policies to treat unions similarly to a broad spectrum of potentially comparable entities.

Old Pitfalls--Bulletin Boards and Other Methods of Communication

Beyond e-mail communication, employers often provide a number of other media through which employees can communicate. From bulletin boards to internal newsletters, employees often use these forms of communication to, for example, post baby announcements, sell Girl Scout Cookies and, perhaps, organize.

The NLRB has "consistently held that there is 'no statutory right . . . to use an employer's equipment or media,' as long as the restrictions are nondiscriminatory." In Mid-Mountain Foods, 332 NLRB 229, 230 (2000), order enforced, 269 F.3d 1075 (D.C. Cir. 2001), the Board ruled that there was no statutory right to use a television in the employer's break room to show a prounion campaign video. In Eaton Technologies, 322 NLRB 848, 853 (1997), the NLRB ruled that "[i]t is well established that there is no statutory right of employees or a union to use an employer's bulletin board"; and in Champion International Corp., 303 NLRB 102, 109 (1991), it stated that an employer has "a basic right to regulate and restrict employee use of company property," which, in that case, was a copy machine. In Churchill's Supermarkets, 285 NLRB 138, 155 (1987); order enforced, 857 F.2d 1474 (6th Cir. 1988), cert. denied 490 U.S. 1046 (1989), the Board recognized that an employer has "every right to restrict the use of company telephones to business related conversations." Similarly, in Union Carbide Corp., 259 NLRB 974, 980 (1981); order enforced in relevant part, 714 F.2d 657 (6th Cir. 1983), the NLRB ruled that an employer "could unquestionably bar its telephones to any personal use by employees."

An employer's policies pertaining to employee use of employer provided communication media should be written with due consideration given to whether the policy treats unions less favorably than other, similar organizations. Employers "should look for disparate treatment of union postings" to determine whether a policy, or the manner in which the policy is enforced, poses a risk for a potential violation of section 8(a)(1) of the NLRA. In other words, does the policy treat union activity differently than other, similar forms of organizational activity? If so, either with regard to how the policy is drafted or enforced, the employer runs the risk of violating the NLRA.