Many employers have been surprised by recent rulings that two common employment policies run afoul of the National Labor Relations Act (“NLRA”) even if their employees are not union members. Based on a legitimate interest in preserving confidentiality and privacy, many employers have adopted social media policies limiting what employees may post on Facebook or Twitter about their employer or co-workers. Based on similar privacy considerations, employer procedures for investigating sexual harassment and other complaints often place restrictions on what employees may reveal to their co-workers or others about the allegations. According to recent decisions, however, both policies may violate Section 7 of the NLRA, which permits employees to engage in “concerted activity” for “mutual aid and protection.”
Section 7. It is well established under the NLRA that employees may confer with one another about their wages and other terms of employment and may take “concerted” action in an effort to improve their working conditions. Employees (but not managers) are protected by Section 7 of the NLRA, whether or not they are members of a union. But employers rarely face Section 7 issues since claims under Section 7 must be asserted in charges filed with the National Labor Relations Board (“NLRB”), and few employees do so.
Confidentiality of Complaint Investigations. Enforcement Guidance issued by the EEOC directs employers conducting investigations of workplace harassment to assure complainants that they “will protect the confidentiality of harassment complaints to the extent possible.” Employers routinely adopt policies asking employees who are part of workplace investigations, either as complainant or witness, to keep such investigations confidential. Such policies help ensure the integrity of investigations, prevent workplace retaliation for participation in investigations, protect the privacy of complainants, and foster an environment where employees will readily report harassment concerns.