A recent Memorandum from the National Labor Relations Board’s General Counsel’s Office Division of Advice may cause employers to consider including a National Labor Relations Act-related disclaimer in their employee handbook or human resources policies.

In Cox Communications, 17-CA-087612 (2012), the employer’s social media policy contained three provisions, the legality of which had been challenged by an employee who had been terminated for violating the policy. The employee filed an unfair labor practice charge against the employer alleging the policy was unlawful under the NLRA and, therefore, his termination for violating the policy also was unlawful. Following investigation of the charge, the Board’s Regional office asked the Division of Advice for an opinion on whether to issue a complaint.

The Division decided the questionable provisions did not violate the NLRA because they would not “reasonably tend to chill employees in the exercise of their Section 7 rights.” More notably, however, the Division also discussed the inclusion of the following disclaimer (which it called a “savings clause”) in the policy:

Nothing in Cox’s social media policy is designed to interfere with, restrain, or prevent employee communications regarding wages, hours, or other terms and conditions of employment. Cox Employees have the right to engage in or refrain from such activities.

Regarding the effect of the disclaimer on the legality of the three questionable provisions, the Division of Advice noted:

[The] . . . savings clause . . . further ensures that employees would not reasonably interpret any potentially ambiguous provision in a way that would restrict Section 7 activity.

This appears to be the first time an NLRA disclaimer has been given any weight in an agency determination about a social media or other employer policy. The Division has reviewed at least one other, less-specific disclaimer (i.e., the policy “will be administered in compliance with applicable laws and regulations . . . including the National Labor Relations Act”) and decided it was ineffective to cure ambiguities in an employer rule. Unlike that disclaimer, however, the Cox provision specifically described a key element of Section 7 rights – the right of employees to communicate about “wages, hours, or other terms and conditions of employment.”

Although it is clear the Division would have decided the policy in  Cox was lawful in any event, the disclaimer adds a distinctive note to its approval. For that reason, employers should consider including similarly specific language in particular policies that may raise legal concern under the NLRA. (Since the disclaimer was included in a specific policy, it remains an open question whether the Division of Advice would comment favorably on a similar disclaimer that is   included only at the beginning or end of a handbook.) However, the inclusion of this disclaimer is not a substitute for a thorough legal review of employer policies and rules for NLRA compliance.

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.