Having Weighed in on Employers’ Social Media Policies, NLRB Rules on Employee Handbooks
The National Labor Relations Board has recently garnered national attention for its crackdown on social media policies. However, over the last few years, the Board has quietly heightened its scrutiny of company handbook policies as part of its quest to assert itself in a predominately non-union private sector. Many of these policies - such as confidentiality, employee conduct, and at-will employment, to name a few - are commonplace in most employers' handbooks.
Though the Board cannot assess fines or award damages against businesses with handbook policies that are found to be in violation of the National Labor Relations Act, a discipline or termination that was based on these policies could be invalidated, as well as a failed union election retried, if employees claim to be intimidated by such policies. Therefore, it is important for employers to take notice of handbook provisions, such as the following, that have recently been targeted by the Board.
Employers need to be careful when drafting confidentiality rules barring workers from discussing company, employee, or personal information as the Board has consistently interpreted such policies as encompassing workers' terms and conditions of employment. As a result, handbook policies concerning confidential information must outline the specific conduct employees cannot discuss, as well as provide a legitimate business justification for the prohibitions.
For example, in Design Technology Group, 359 NLRB No. 96 (April 19, 2013), the Board found the employer violated the Act not only by maintaining a Wage and Salary Disclosure rule in its handbook prohibiting disclosure of wages or compensation to any third party or other employee, but also for discharging three employees, under the rule, for discussing their wages on Facebook. The Board went a step further when one of the Board members further found that an additional handbook rule, the Confidential Information Security rule - which was not alleged in the complaint to be unlawful - also violated the Act.
Though most employers would not consider handbook policies governing employee conduct - such as profanity, respect or courtesy in the workplace - to be controversial, the Board, in Knauz BMW¸ 358 NLRB No. 164 (Sept. 28, 2012), found policies requiring "courtesy" among employees to be unlawful. Accordingly, employers must ensure their employee conduct policies cannot be construed as prohibiting employees from advocating for their rights, such as improved terms and conditions of employment, under the Act. To the extent possible, employers should provide a context and examples of what behavior they are attempting to target and why.
Perhaps as an extreme example, the Board's General Counsel, in an advice memorandum, found that no reasonable employee could interpret Boeing's Code of Conduct Policy as restricting union activity. The policy included almost 40 pages of explanations and examples.
The Board has found that requiring an employee to agree to an at-will employment clause stating the relationship "cannot be amended, modified or altered in any way" could be interpreted as forcing the employee to give up his or her right to unionize and advocate for an agreement with management to change the at-will employment status. Such blanket statements should be avoided or risk being found in violation of employee Section 7 rights.
For example, in Windsor Care Centers, 32-CA-087540 and 21-CA-087575, the company's at-will employment policy stated that, "Only the Company President is authorized to modify the Company's at-will employment policy." The Board found this language to be lawful because it did not 100% foreclose the ability of the employer to modify the status. Therefore, employers should ensure their at-will policy or disclaimer holds open the ability of the employer to modify the employee's at-will status.
In a recent opinion, an NLRB Administrative Law Judge found Laurus Technical College's anti-gossiping policy to prohibit protected activity. The specific policy at issue prohibited employees from participating in, or instigating, "gossip about the company, an employee, or customer." The company defined gossip as "an activity that can drain, corrupt, distract and down-shift the company's productivity, morale, and overall satisfaction. It has the potential to destroy an individual and is counterproductive to an organization." The company then included several examples of behavior it considered "gossiping." Despite this, the ALJ stated that the rule "on its face prohibits protected activity, as it is overly broad, ambiguous, and severely restricts employees from discussing or complaining about any terms and conditions of employment." The ALJ called the policy an "expansive ban against any discussion."
As with other handbook provisions, employers must not only narrowly draft anti-gossip policies to ensure they only capture the intended behavior, but also provide sufficient examples so as to avoid being interpreted as restricting employees from discussing terms and conditions of employment.
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