United States: NLRB Continues To Scrutinize Employer Policies

David J. Santeusanio is a Partner and Brian M. Doyle is an Associate in our Boston office.

NLRB General Counsel’s Guidance Memorandum and Recent Cases Highlight NLRA Issues

HIGHLIGHTS:

  • The NLRB General Counsel's Guidance Memorandum addresses employer policies on confidentiality; employee conduct towards the employer, supervisors and fellow employees; communications with third parties; restrictions on the use of company logos, copyrights and trademarks; rules restricting photography and recording; rules restricting employees leaving work; and conflicts of interest.
  • In recent cases, the Board has ruled that certain employer policies on confidentiality and social media violate the National Labor Relations Act.
  • Guidance Memorandum and cases highlight the need for union and non-union employers to review policies and train managers who enforce policies.

The National Labor Relations Board (NLRB or the "Board") continues to address the scope of permissible employer policies and workplace rules through guidance issued by its General Counsel and in Board decisions. In March 2015, the NLRB General Counsel issued a Guidance Memorandum providing examples of permissible and unlawful employer policies. In the weeks since the Guidance Memorandum was issued, Board decisions and a recent administrative law judge decision have further illustrated how employer policies may run afoul of the National Labor Relations Act of 1935 (NLRA or the "Act").

The Act and the Board's Decision in Lutheran Heritage

The starting points for analyzing whether a workplace policy is unlawful under the Act are Sections 7 and 8 of the Act and the Board's decision in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). Section 7 of the Act states, in relevant part, that employees have "the right to self-organization, to form, join, or assist labor organizations of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." Section 8(a)(1) of the Act makes it an unfair labor practice for an employer "to interfere with, restrict, or coerce employees in the exercise of the rights guaranteed in Section 7" of the Act.

The Board has long held that the mere maintenance of a workplace policy may violate Section 8(a)(1) of the Act if the policy has a chilling effect on Section 7 activity. In Lutheran Heritage, the Board explained that the most obvious way in which a rule would violate Section 8 is if the rule explicitly restricts protected concerted activity. But even if the rule did not explicitly prohibit Section 7 activity, the rule will violate the Act if (1) employees would reasonably construe the rule's language to prohibit Section 7 activity; (2) the rule was promulgated in response to union or other Section 7 activity; or (3) the rule was actually applied to restrict to exercise of Section 7 rights. The Guidance Memorandum and the recent cases apply this three-part test to common workplace policies.

General Counsel's Guidance Memorandum

The Guidance Memorandum is a response to the evolving Board law in this area. In the Guidance Memorandum, the General Counsel addresses employer policies on confidentiality; employee conduct towards the employer, supervisors and fellow employees; communications with third parties (e.g., media, government); restrictions on the use of company logos, copyrights, and trademarks; rules restricting photography and recording; rules restricting employees leaving work; and conflicts of interest. For each type of employer policy, the General Counsel offers examples of unlawful policies and permissible policies, with specific examples of the ways employers have effectively tailored policies so that they are permissible under the Act. While the Guidance Memorandum explains how the General Counsel views certain policies, the Board will ultimately rule on the validity of an employer policy based on, among other factors, the language of the policy and the context in which a policy is implemented and enforced.

Recent NLRB and Administrative Law Judge Decisions Since Guidance Memorandum

Recent Board decisions and administrative law judge decisions further illustrate the potential pitfalls of enforcing an overbroad policy and disciplining employees for violating a policy when the employee's alleged wrongful activity is related to union activity.

Overbroad Social Media Policy

In Boch Imports, Inc., 362 NLRB No. 83 (April 30, 2015), the Board concluded that the employer's social media policy violated the Act. The policy required employees to (1) identify themselves whenever they posted comments about the employer, the employer's business, or a policy issue, and (2) prohibited employees from using the employer's logo "in any manner." The Board found that the self-identification requirement was overly broad because employees would reasonably construe it to cover comments about the terms and conditions of employment, and the requirement to self-identify would reasonably interfere with employees' protected activity on various social media outlets. The Board further concluded that a blanket prohibition on the use of a company logo was unlawful because employees would reasonably read the restriction on using the employer's logo "in any manner" to cover protected employee communications, such as an employee engaging in union activity while wearing a uniform bearing the company logo. By maintaining this policy, the employer violated the Act.

Vulgar Social Media Post Directed at Supervisor Is Not Violation of Harassment Policy and Termination of Employee for Posting Was Unlawful

In Pier Sixty, LLC, 362 NLRB No. 59 (March 31, 2015), the Board concluded that an employee who directed obscenities to his manager was engaged in protected concerted activity under the Act and that his employer violated the Act when it terminated his employment for allegedly violating the employee's policy against harassment. The employee was a server working at a fundraising banquet. A vote on union representation was scheduled to take place in two days. As employees were setting up for the event, the manager allegedly treated the employee and the employee's co-workers disrespectfully by telling them, in a loud voice, to "stop chitchatting" and ordering them to spread out, in a voice load enough for guests to hear. The employee took a break and made a Facebook posting that insulted his manager, directed obscenities at his manager and his manager's family, and encouraged his co-workers to "vote YES for the UNION???" The employer learned of the Facebook posting and terminated the employee for violating its harassment policy.

The Board found that the employee's Facebook posting was protected concerted activity in totality of the circumstances. According to the Board's factual findings, the circumstances included the fact that the employer had showed hostility toward union activities in the week leading up to the election by committing multiple unfair labor practices; the comment was made on impulse and in response to a supervisor's allegedly disrespectful remark; the comments were posted "while alone, on break, and outside [the employer's facility]"; the comments did not interrupt the work environment or relationships with customers; the comments "echoed employees' previous complaints about management's disrespectful treatment" of the employees and "encouraged employees to vote in favor of union representation": the employer generally "tolerated the widespread use of profanity in the workplace"; and the slurs mentioning the supervisor's family "were not a slur against [the supervisor's] family, but rather an epitaph directed toward [the supervisor] himself." The Board further concluded that the harassment policy that the employer cited as the basis for terminating the employee "neither prohibits vulgar or offensive language in general," nor did the employer allege that that the Facebook comments "were directed at any protected classification listed in that policy." The Board also noted that there was no evidence that the employer had ever terminated an employee "solely for the use of such language."

The Board concluded that the social media statements were protected by the Act, and that the employer violated the Act by terminating the employee.

Overbroad Confidential Information Policy

In Macy's Inc., 01-CA-123640 (May 12, 2015), an administrative law judge found that Macy's maintained an unlawful employee handbook that contained overbroad confidential information policies. Macy's implemented several policies that contained language prohibiting employees from divulging "the personal information of the Company's employees and customers," "information about employees ... which if known outside the Company could harm the Company or its ... employees," "confidential information," "information such as names, home and office contact information," "any information that is not generally available to the public that relates to the Company or the Company's ... employees," and "personally-identifiable information (Personal Data) ... [which] includes names, home and office contact information." The administrative law judge held that these provisions unlawfully restrict employees from discussing the terms and conditions of their employment. The administrative law judge further noted that these provisions are repeated throughout the Macy's handbook, which reinforces the finding that employees would reasonably believe that these policies interfere with their rights under the Act.

This decision is particularly notable for two reasons. First, it did not stem from any adverse action taken against an employee. Rather, the charging party in this case was a union that merely sought to invalidate the confidential information provisions in Macy's employee handbook. Second, Macy's included a "savings clause" in its handbook specifically stating that nothing in the handbook is intended to limit employees from engaging in their rights protected by the Act, including protected concerted activities. The administrative law judge found that this "savings clause" was insufficient and written in a "generic" manner, whereas the prohibitions on employee conduct were very specific. Macy's has the right to file exceptions to the judge's findings and the proposed order (by June 9, 2015), and, if no exceptions are filed, the judge's order becomes an order of the Board.

An administrative law judge's decision in Rocky Mountain Eye Center, P.C., 19-CA-134567 (May 6, 2015), provides another example of an overbroad confidential information policy and an employer violating the Act by terminating an employee for violating that policy. An employee accessed a database that included contact information for both the employer's patients and employees. She then shared the employee contact information with a union organizer, who used the information to contact employees. When her employer learned that she accessed the database, she was terminated for violating the employer's confidentiality policy. That policy stated that "information about physicians, other employees, and the internal affairs of [the employer] are considered confidential ... . Breach of either patient or facility confidentiality is considered gross misconduct and may lead to immediate dismissal." The administrative law judge concluded that the confidentiality policy was unlawful because an employee would reasonably construe the policy to restrict protected activity, and because the rule was applied to restrict the employee's right to share information about other employees with the union. The judge went on to further conclude that the employer violated the Act by terminating the employee for engaging in protected concerted activity. The employer must file exceptions to the judge's findings and the proposed order by June 3, 2015.

Permissible Social Media Policy

In Landry's Inc. (Bubba Gump Shrimp Co.), 362 NLRB No. 69 (April 16, 2015), the Board affirmed an administrative law judge's decision to dismiss a complaint that the employer maintained an unlawful social media policy. An employee alleged that she was terminated from her employment after her employer found that she made "certain negative statements on a social website regarding her employment." The employer's social media policy stated:

While your free time is generally not subject to any restriction by the Company, the Company urges all employees not to post information regarding the Company, their jobs, or other employees which could lead to morale issues in the workplace or detrimentally affect the Company's business. This can be accomplished by always thinking before you post, being civil to others and their opinions, and not posting personal information about others unless you have received their permission.

The judge noted that the "cautionary language" in the first sentence could act to inhibit employees from exercising their Section 7 rights. But the judge went on to conclude that when read in conjunction with the second sentence, the policy was sufficiently narrowly tailored to the "manner and tone" with which employees discuss the terms and conditions of their jobs, and "not the content." The judge concluded that the employer did not violate the Act.

Critical Issues for Employers to Consider

The Guidance Memorandum and recent decisions highlight some critical points.

First, employers should review carefully their employee handbooks and policies to ensure compliance with the Act. (See Holland & Knight alerts: " The National Labor Relations Board: 2014 Year in Review," Jan. 29, 2015; and " NLRB 2013 Year in Review and 2014 Initiatives," Feb. 10, 2014.) The most common way an employer's policy violates the Act is by drafting it in such a way that an employee would "reasonably construe" the policy to prohibit protected activity. Consequently, employers should review their policies with an eye toward that critical point and assess whether the policies can be more narrowly-tailored to pass muster under the Board's standards.

Second, an employer – union or non-union – may violate the Act merely by maintaining an unlawful policy. An employer need not enforce the policy or otherwise take an adverse employment action against an employee to violate the Act. And because the Act applies to both union and non-union workplaces, virtually all employers are subject to the Act and to scrutiny by the Board. This underscores the need for all employers to review employee handbooks and policies.

Third, before an employer takes an adverse action against an employee for an alleged violation of a policy, the employer should consider carefully the Act. As recent cases illustrate, this is critical when the employee's alleged violations of an employer policy occur in the context of union activity, such as during the initial stages of union organizing or during a union campaign. Consequently, managers and human resources professionals who address the day-to-day employee matters and who must apply policies to particular circumstances should be trained on the Act and potential pitfalls.  

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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