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The Unexpected Watchdog of Personnel Policies

Peter J. Richter

June 16, 2014

Many non-union employers mistakenly believe that the National Labor Relations Act (NLRA) merely covers issues involving active union organization or bargaining. However, a number of recent decisions by the National Labor Relations Board (NLRB) and Administrative Law Judges (ALJ) have shown that the scope of the NLRA can extend far beyond the prototypical union-management relationship and reach an employer’s human resource policies and procedures.

Under Section 7 of the NLRA, “[e]mployees shall have 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, and shall also have the right to refrain from any or all such activities[.]” Section 8 of the NLRA further provides that an employer commits an “unfair labor practice” if the employer tries to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.”  The NLRB has taken a fairly expansive view of what actions might constitute an unfair labor practice and more employers are being questioned and challenged based on their personnel handbook policies and related procedures.  Recent rulings have condemned policy language addressing at-will employment and social media restrictions, and criticized disciplinary actions based on employee violations of personnel manuals.

In a decision filed on March 24, 2014, the NLRB’s ruling that parts of an employer’s confidentiality policy violated the NLRA was upheld on appeal. The policy provided in part that employees were prohibited from disclosing “Confidential Information” including “personnel information and documents” and “financial information pertaining to the company.” As an employee’s discussion of wages could be protected by Section 7 of the NLRA, the NLRB determined that the employer’s policy was unlawful because it failed to exclude wage discussions from the scope of the policy.  Flex Frac Logistics, L.L.C., et al. v. NLRB. 

In a decision issued on May 19, 2014, an ALJ similarly ruled that an employer’s policy was unlawful when the policy provided that “[i]nsubordination to a manager or lack of respect and cooperation with fellow employees or guests” could result in discipline was unlawful. In so holding, the ALJ found the policy language to be overly broad and too subjective, in part because it did not define insubordination and that, therefore, an employee might believe engaging in speech protected by Section 7 might be prohibited insubordination under the policy. Hoot Wing, LLC and Ontario Wings LLC d/b/a Hooters of Ontario Mills.

In light of the seemingly ever expansive reading of the NLRA and the resulting application of Section 7 to human resource policies and practices that might be considered fairly standard, employers should routinely review their personnel manuals to ensure that they aren’t unwittingly violating the law.

If you have any questions about how the information in this article may affect you or your business, please contact Peter Richter at prichter@stroudlaw.com or (608) 257‑2281 or your Stroud attorney.


DISCLAIMER: The information in this article is provided for general informational purposes only, is not necessarily updated to account for changes in the law, and should not be considered tax or legal advice.  This article is not intended to create, nor does the receipt of it constitute, an attorney-client relationship.  You should consult with your own legal and/or financial advisors for legal and tax advice tailored to your specific circumstances.