As The
Employee With The Dragon Tattoo first reported back in 2014
and 2015,
the National Labor Relations Board (“NLRB”) has taken a highly aggressive
position against many commonly utilized employee handbook policies. The NLRB alleges that overbroad employment policies
could have a chilling effect on employees’ concerted activities protected by
Section 7 of the National Labor Relations Act (“NLRA” or “the Act”). This applies whether employees are members of
a union or not. Under the NLRB’s
2015 interpretive guidelines, an employer’s policy will violate the NLRA if
it could simply be “construed” as restricting Section 7 rights.
The NLRB has now taken it one
step further. In a recent ruling
earlier this Summer, an NLRB Administrative Law Judge (“ALJ”) held that a
California casino’s handbook policy that prohibited employees from conducting “personal
business” while on the job on company property could be construed to be illegal
under the Act. In the ruling, the ALJ
held:
[T]he
prohibition against conducting "personal business" on company
property and "while at work" can reasonably be read to restrict the
communications of employees with each other about union or other Section 7
protected rights in non-work areas and on non-work time. The rule makes it
clear that personal business is the opposite of "Casino Pauma
business," thus including communications about unions or complaints about
working conditions in the "personal business" category. The
restriction of protected activity "while at work" is also too broad
because it is not properly restricted to "work time" and thus bans
protected activity during nonwork time,
such a time on lunch, breaks and before and after work.
At the least,
the prohibitions against conducting "personal business" in Rule 2.19
are ambiguous insofar as that term may be read to include discussions about
unions and other concerted activity; the rule thus puts employees at risk if
they guess wrongly about what the Respondent means by "personal
business." (citations omitted).
The ALJ’s opinion also noted
that under the Act, employees are generally free to distribute union literature
on company property during such nonwork time as long as it is in nonworking
areas of the company facility.
In its 2015 interpretive
guidelines, the NLRB listed a series of other commonly implemented employment
policies that it maintained were illegally overbroad. Examples of such policies include:
·
Do not discuss "customer or employee
information" outside of work, including "phone numbers [and]
addresses."
·
"You must not disclose proprietary or
confidential information about [the Employer, or] other associates (if the
proprietary or confidential information relating to [the Employer's] associates
was obtained in violation of law or lawful Company policy)."
·
Prohibiting employees from "[d]isclosing
... details about the [Employer]."
·
"Sharing of [overheard conversations at the
work site] with your co-workers, the public, or anyone outside of your
immediate work group is strictly prohibited."
·
"Discuss work matters only with other
[Employer] employees who have a specific business reason to know or have access
to such information.. .. Do not discuss work matters in public places."
·
"[I]f something is not public information,
you must not share it."
The ALJ’s opinion that a policy
against conducting personal business “while at work” likely seems nonsensical
to employers who are legitimately trying to prevent employees from spending
their work hours on Facebook, shopping on Amazon, or chatting with friends on the phone. However, this latest ruling is
a wake-up call for employers to review their employee handbooks to address any
purported ambiguity that the NLRB might “construe” as being overbroad.
A
MESSAGE TO READERS OF "THE EMPLOYEE WITH THE DRAGON TATTOO"
A reader of this blog recently
asked if she could be included on an e-mail list for new posts. I
currently do not have an e-mail service but it seems like an excellent idea and
I will be setting it up in the very near future. If you would like to be
included, please send your name, your company, and your e-mail to me at fijmanm@phelps.com. Thanks!
