Posted By: Marc Tillery /
If you run a staffing business you need to be aware of the recent decisions the National Labor Relations Board (NLRB) has made. These rulings have significantly expanded the rights of non-supervisory employees, enabling them to discuss information that many would view as confidential.
The Laws and Cases
Section 7 – Section 7 of the National Labor Relations Act (NLRA) allows non-supervisory employees to engage in “concerted activities for the purpose of mutual aid or protection”. In other words, depending on the terms and conditions of employment, an individual is well within his or her rights to hold water cooler conversations on a wide array of subjcts that may be tangentially related to his or her treatment by company management. The Banner Health System and Hispanic United cases below show some of the breadth of the law.
The Banner Health System Case, 358 NLRB No. 93 – On July 30, 2012 the NLRB maintained that, even if the employer had adopted rulings for the employees to keep the details of internal investigations confidential, employee discussion of this subject matter could be considered protected employee speech.
The Hispanics United of Buffalo, Inc. Case, 359 NLRB No. 37 – On December 14, 2012, a National Labor Relations Board Administrative Law Judge found that a Buffalo nonprofit organization had discharged five employees unlawfully after they posted comments on Facebook concerning working conditions, including work load and staffing issues, making clear that even social media postings can be protected water cooler conversation.
The Impact on Running a Staffing Business
These changes in the law have the potential to pose a threat to your staffing business. One way to think of it is that all of your employees’ conversations are protected, no matter how inflammatory, even if they relate only tangentially to employee working conditions.
Section 7 is all about the employee’s freedom of speech. If you run a staffing business, you may want to begin to think about what information you disclose to whom, in an attempt to avoid any unnecessary blathering around the water cooler.
The impact of Banner Health ultimately concerns confidentiality. If you are managing a staffing company you must determine, on a case-by-case basis, whether a “legitimate and substantial justification” exists for requesting the confidentiality of your employees. This again links with Section 7 rights and an attempt to “minimize the impact” of internal investigations.
The Hispanics United case is most notable, especially in light of the growth of social media, presenting a problem for how to run a staffing business, since it’s difficult to monitor the social media of your employees in the first place.
If you think these decisions may threaten the integrity of a business, you need to take care. Perhaps it is best to keep important internal information you disclose to your staff to a minimum. Or perhaps confidentiality laws need to be in place in the contracts you give to your employees. The water cooler now seems to be protected space.