NLRB: Be Careful When Disciplining Employees for “Disloyalty”

The National Labor Relations Board has been critical of policies and personnel practices that lead to disciplinary actions against employees for criticizing employment conditions. According to the NLRB, an employer cannot prevent or inhibit “concerted activity” by employees, and discipline for unfavorable comments about salaries, working conditions, job requirements, and similar subjects can unlawfully prevent discussions among employees about job related matters.national-labor-relations-board-logo

Last month, the NLRB ruled that the termination of an employee for “disloyalty” crossed the line. The decision involved a sports bar that fired an employee for clicking the “like” button on a Facebook post critical of the bar’s personnel practices. Employees were complaining that management improperly withheld income taxes leading to employee liability. The employee, a cook who “liked” a post discussing the unhappiness with management, was terminated along with another employee whose Facebook posts were considered disloyal and defamatory. The Board found the terminations to be unfair labor practices since they inhibited concerted activity.

This followed an earlier decision involving a car dealership’s personnel handbook. In that case, an NLRB Administrative Law Judge was critical of numerous provisions that the ALJ believed inhibit job discussions such as:

  • a provision banning unauthorized disclosure or use of confidential or proprietary information on compensation plans and incentive programs,
  • a provision that prohibited actions harmful to the “image” of the business,
  • social media policies that employees could construe to prevent them from discussing their terms of employment with coworkers, and
  • a dress code that prohibited employees from wearing pins, insignias, and other message clothing which could be construed to prevent employees from wearing buttons and the like promoting union activity.

What lessons should a dealer take from these NLRB activities?

  • Do not think that you are immune from NLRB action because you do not have a union in your dealership. The agency is increasingly involved on behalf of non-unionized employees to protect their ability to discuss their work conditions.
  • The NLRB has shown the propensity to scrutinize disciplinary actions arising from discussions or complaints about working conditions.
  • Given the political climate surrounding this NLRB, you should not underestimate the willingness of the agency to get involved in matters involving small businesses. The agency is pro-union, and unions are increasingly searching out small businesses or even small groups of employees in a business to unionize. The NLRB will be vigorous to take action protecting the rights of employees to communicate concerning wages and conditions of employment if that will foster unionization.
  • A dealer should review its handbook with a critical eye to scrub provisions that could be viewed as inhibiting employee discussions about working conditions.
  • You should train managers about the dangers of preventing or inhibiting discussions of work conditions.