By: Bill Pilchak – 2/12/15
NLRB ADVANCES WORKERS’ RIGHTS IN NON-UNION CONTEXT
ALTERS COMMON BUSINESS PRACTICES: NO-SOLICITATION CLAUSES & ANTI-BULLYING POLICIES
Business often decries how intrusive the federal government has become, but specifics are seldom provided. Perhaps individual businesses fear retribution from the government should they point fingers at specific agencies. Thankfully, law firms are not as highly regulated – and thus not as vulnerable to intimidation – as our clients. And, thankfully, we are too well-armed in the law to be daunted from pointing out the march of Big Government.
Accordingly, allow me to illustrate how one agency, the National Labor Relations Board, has asserted employee rights outside the union context to dismantle heretofore-legal employer policies and practices.
No-Solicitation (Of Employees) Clauses
Most non-compete and executive employment agreements contain a provision that employees will not solicit their colleagues after their employment ends, typically for a defined period of time. According to the NLRB, these provisions are illegal for non-managers. In Quicken Loans, 361 NLRB No. 94 (N.L.R.B. Nov. 3, 2014), “Garza” was employed as a loan officer. She signed an agreement which acknowledged that Quicken’s personnel lists, rosters, personal information of co-workers, managers, executives and officers, including home and cell phone numbers, addresses, and email addresses was confidential. The agreement also apparently contained non-compete clauses and an obligation to refrain from contacting or soliciting Quicken Loans’ employees after employment ended. After Garza left employment, she and five other former employees of Quicken were sued for alleged violations of the no contact/no raiding and non-compete provisions. Garza countered the suit by filing a Charge with the NLRB. Even though Garza was no longer an employee, the NLRB found that the designation of employee information as confidential chilled the section 7 rights of employees (to engage in protected, concerted activity –including the formation of a union) and ordered Quicken to rescind the provisions that employee information was confidential and inform all employees that it will not be enforced.
Thankfully, Quicken Loans has petitioned the D.C. Court of Appeals to overturn the Board’s ruling. Briefs are due this month. Stay tuned.
The NLRB recently applied Section 7 rights to prohibit terminations for bullying. The holding of Hispanics United of Buffalo, 359 NLRB No. 37 (December 14, 2014) will surprise many business owners/leaders. Marianna and Lydia were coworkers, who communicated by phone and text during and after work. Lydia frequently criticized other co-workers, who she felt did not provide timely and adequate assistance to clients. When Lydia told Marianna that she intended to bring her concerns to management, Marianna informed four of those employees, who then posted comments about Lydia on Facebook. The Board’s opinion does not fully quote the postings, but management considered them “bullying and harassment” in violation of the company’s zero-tolerance policy and terminated the employees who posted them. Finding the Facebook comments to be “the first step toward taking group action” and constituting concerted, protected activity, the Board ruled the discharges were an unfair labor practice.
In an era where unions are becoming less popular (per Associated Press, union members in Michigan dropped by 48,000 workers last year to 585,000) and where the NLRB has less work on its plate, it has reached out to the non-union environment for cases. Heaven forbid that a federal agency might shrink because the business model underlying its “cause” has become outmoded.
The takeaway for employers is: Be careful when terminating or disciplining employees who take “group” action, even in a non-union context. Likewise, it is time to review and revise the policies (social media, confidentiality, use of company logos, etc.) that the NLRB targets when ruling against employers.