The National Labor Relations Board (“NLRB”) continued its recent trend of reviewing employment provisions often contained in employee handbooks or employment agreements. On December 3, 2012, the NLRB’s Division of Advice released an Advice Memorandum dated May 16, 2012 in which it reviewed a “moonlighting” provision and a non-compete provision in an employment agreement. The matter was submitted to the NLRB to review whether the provisions interfered unlawfully with the rights of employees to seek redress of workplace grievances collectively.
The NLRB’s associate general counsel first reviewed a provision prohibiting moonlighting by employees (i.e. working for more than one employer simultaneously). The associate general counsel determined that the provision could be read to prevent employees from engaging in the protected activity of salting, which is a labor union tactic for individuals to obtain a job in a particular workplace with the intent of organizing a union at the site. However, the general counsel also noted that such a provision is not unlawful if the provision was not issued in response to union activity or anti-union animus. The general counsel therefore directed that the NLRB regional director conduct an investigation about whether the company acted with any anti-union animus.
The associate general counsel also reviewed a non-compete clause that prohibited the employee from working for a competitor during employment and for two years thereafter. The associate general counsel determined that the provision did not violate the National Labor Relations Act.
Although this matter was submitted to the NLRB as part of a dispute between a union seeking to organize the workers and the company, this advice memorandum continues the recent trend of the NLRB to examine provisions commonly found in employment contracts and employment handbooks to determine if the provisions deter or prevent employees from discussing the terms and conditions of their employment or seeking to improve their employment collectively. Over the last several months, the NLRB has opined about common provisions such as company investigations, policies prohibiting defamatory or disparaging comments, confidentiality policies, and social media policies. In drafting or editing handbooks and contracts, employers should be aware of the NLRB’s determinations and that it is actively reviewing policies and provisions to determine if employees are being deterred or prevented from seeking to improve their employment in a collective manner.