To Proskauer Rose partner Ronald Meisburg, Labor Day means more than one last trip to the beach and stowing your white shoes until next summer.
The former National Labor Relations Board general counsel and board member in an interview weighed in on the state of organized labor and regulatory oversight. Union membership may be on the decline, he said, but the NLRB is doing its best to stay relevant.
"They are taking very seriously that part of the [National Labor Relations Act] that protects employees who don't have a union but want to engage in a concerted activity," said Meisburg, who co-heads the firm’s labor-management relations practice and was GC of the agency from 2006 to 2010.
In the intervening two years, the board and acting general counsel Lafe Solomon have increasingly invoked what was once a little-used provision to challenge employer policies covering issues such as at-will employment, the use of social media and employer investigations.
The provision, Section 7 of the National Labor Relations Act, states that employees have the right to form unions, and also to "engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
In one recent case against Hyatt Hotels, the NLRB objected to “overly broad” wording in the hotel chain’s employee handbook that stated, “I understand my employment is ‘at will.’ This means I am free to separate my employment at any time, for any reason, and Hyatt has these same rights. Nothing in this handbook is intended to change my at-will employment status.”
The NLRB’s concern is that if the employees were to unionize, that could change the conditions of their employment and they would cease to be at-will workers. But by stating workers are at-will in the handbook, “the theory is it could make an employee feel like it would be impossible to change that,” Meisburg said – giving rise to the NLRB’s contention of a Section 7 violation.
The case against Hyatt settled when the company revised the wording, but it's not clear whether the NLRB could have prevailed in court.
“At-will provisions in handbooks have been around for decades,” he said, noting that many rules that govern the at-will relationship are matters of state law.
The NLRB has also found many employer policies governing the use of social media to be over-broad and in violation of Section 7. The agency has brought more than 100 cases involving some aspect of social media, and Solomon recently issued extensive guidelines spelling out employer dos and don'ts. For example, employers should not broadly tell employees they can’t disclose confidential information, because that could include information about working conditions, which is protected by Section 7.
Another recent controversial case involved whether companies can require employees to keep internal HR investigations confidential. Last month, the NLRB ruled that a blanket policy requiring secrecy violates Section 7 because it could also prevent workers from discussing workplace problems.
However, Meisburg pointed out that the U.S. Equal Employment Opportunity Commission has said that HR investigations should be confidential. “There has been criticism that the board is not properly balancing its role and its understanding of the [National Labor Relations Act] with other federal and state laws,” he said.