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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions