The Columbus, Ohio employment attorneys at Nardone Limited regularly assist our clients with labor and employment issues, such as Department of Labor compliance, as well as advice on preventing and responding to discrimination charging affidavits filed with the Equal Employment Opportunity Commission (“EEOC”) and the Ohio Civil Rights Commission (“OCRC”). As a part of Nardone Limited’s employment law practice, we are always following recent employment law news and highlighting areas of concerns for our employer clients. One area worth highlighting is the often overlooked need to ensure compliance with the National Labor Relations Act (the “Labor Relations Act”).

The NLRA’s Effect on Small and
Midsize Health Care Business

As discussed in our recent blog, there is a widespread misconception that the Labor Relations Act only applies to unionized workforces. And, as detailed in our blog referenced above, the Labor Relations Act actually applies to many small and midsize businesses that meet the threshold requirements for jurisdiction under the Act. Among those businesses to which the Labor Relations act largely applies are dental practices and healthcare providers. The specific jurisdictional threshold regarding dental practices and healthcare providers only requires that the practice have a gross annual sales volume of $250,000 for a practice to be subject to the Labor Relations Act. Based on this sales threshold number, the Labor Relations Act does in fact apply to almost all dental practices and healthcare providers.

The primary issue that dental practices and healthcare providers should be concerned about in ensuring compliance with the Labor Relations Act is the foundational rule under the Labor Relations Act that protects employee “concerted activity.” Concerted activity generally means any communications or gathering by, or among, employees that are conducted for the purposes of improving working conditions. Thus, dental practices and other healthcare providers should be careful not to enact any policies that are broad enough to infringe upon employee rights to engage in concerted activity.

Tips on Avoiding Policies that
May Violate the NLRA

In any employee handbook policies, dental practices should include a specific carve-out indicating that employee communications to improve working conditions will not be deemed to violate the employee handbook policies. Additionally, employers should be careful to avoid policies that may indirectly impose an undue burden or interference on employees’ concerted activity rights under the Labor Relations Act. Employers are certainly allowed to place limitations on the time and place that these types of comments or discussions may be conducted, and prevent them from being conducted around customers or clients. But, employers should not create broad rules against employees discussing concerns regarding management, pay, hours, PTO policies, or other issues. Compliance in this area can be a difficult guessing game, thus it is important to consult legal counsel regarding developing appropriate policies, and certainly if any workplace controversies arise regarding employee collective activities.

Helpful guidance on the law in this area can be derived from the National Labor Relation’s Board’s published opinions. Recently, the Labor Relations Board issued Memorandum 18-04 (the “Memorandum”), which provided a significant list of examples regarding ensuring that workplace policies comply with the Labor Relations Act. Notably, the Memorandum provided that the following types of policies would be unlawful:

i. Any confidentiality rules specifically regarding wages, benefits, or working conditions (for example, a rule stating that employees are prohibited from disclosing salaries or the contents of employment contracts is unlawful); and

ii. rules that prohibit employees from joining outside organizations or voting on matters concerning the employer.

Further, as examples, the Memorandum provides detailed guidance about how the following common types of policies may violate the Labor Relations Act under some circumstances:

i. Confidentiality rules broadly encompassing ‘employer business’ or ‘employee information’ may violate the Labor Relations Act (as opposed to confidentiality rules to protect proprietary information, which are allowed);

ii. Confidentiality rules that are specifically directed at employee wages, terms of employment, or working conditions (not allowed);

iii. Broad rules regarding disparagement or criticism of the employer may sometimes reflect employees engaging in concerted activity to improve working conditions, which is protected activity, as opposed to generally lawful civility rules against disparagement of other employees;

iv. Rules regulating use of the employer’s name may be too broad in some instances, as opposed to rules regulating the employer’s logo/trademark, which is a presumptively lawful rule;

v. Rules that broadly restrict employees from speaking to the media or third parties may be unlawful, yet rules that restrict speaking to the media on the employer’s behalf are lawful.

The NLRB’s clarifications regarding the above list of rules provides employers with some helpful clarity. Employers should consult the above list when evaluating their employee handbook, along with discussing those issues with their legal counsel.

Employer Takeaways

Contrary to popular belief, the Board’s jurisdiction is quite broad and applies to many employers that do not have union workforces. Thus, employers should talk with their labor and employment attorneys about what policies and procedures need to be implemented to avoid violating the numerous employee protections under the Labor Relations Act.

Contact Nardone Limited

The Nardone Limited employment attorneys handle a full spectrum of employment law issues, including business disputes and litigation, drafting of employment and restrictive covenants, and consultation on all types of employment law issues. If your business needs advice or representation on an employment dispute before the EEOC, the OCRC, or regarding potential employment litigation, contact one of our employment attorneys. Further, feel free to contact Nardone Limited if you would like more information or consultation regarding any employment law issue.