Employment Law Commentary -- March 2007

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Employer Personnel Policies May Constitute An Unfair Labor Practice

Last month, a federal Court of Appeals held that an employer committed an unfair labor practice under the

National Labor Relations Act (NLRA) when it published a general confidentiality rule in its employee handbook.

This ruling was just the latest in a line of cases in which seemingly innocuous personnel policies were found to

violate the NLRA because they could reasonably be interpreted to interfere with the “Section 7” rights of

employees under that Act [ fn1] even though the policies were neither intended nor contemplated to have any

such effect.

This trend has ramifications for all employers — including those with an entirely non-union workforce. An employer who implements a policy that is deemed to violate the NLRA could be required to rescind or revise the policy and post a remedial notice. In addition, an employee who is terminated for violating a policy prohibited by the NLRA could potentially file an unfair labor practice charge with the National Labor Relations Board even if he is not a union employee and was not engaged in any effort to organize a labor union. Therefore, all employers should be aware of this hazard and take steps to avoid any employment policies or work rules that could be interpreted to violate the NLRA.

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