United States: Non-Union Employers Beware: Your Employee Handbook May Violate Employees' Rights

Last Updated: May 15 2017
Article by Lauren M. Pizzo

Can an employer prohibit its employees from participating in public writing or speaking engagements without prior company authorization? What about speaking to the press or media? Such policies are common and routinely included in employee handbooks. If your organization has such policies, however, it may be time to re-think those.

On May 10, 2017, Administrative Law Judge (ALJ) Robert A. Ringler issued a decision finding that Tucson-based G&E Real Estate Management Services violated the National Labor Relations Act (the Act) by maintaining similar policies, along with 15 other unlawful policies, in its Employee Handbook. This is the latest in a series of decisions by the National Labor Relations Board (NLRB) scrutinizing employee handbook policies as overbroad and prohibiting employees' rights to engage in "protected concerted activities" under §7 of the Act. 

Protected §7 activities may include discussing wages or other workplace issues, picketing, taking pictures or recordings of unsafe working conditions or to document evidence of employer wrongdoing, and seeking outside assistance to improve terms and conditions of employment. Although many of G&E's policies contained language that the NLRB has found to be unlawful—including policies regarding employees' use of social media, confidentiality, solicitation at the workplace, and non-business use of company property—this is one of the first decisions where an ALJ has determined that a policy prohibiting employees from participating in outside speaking or writing engagements without company approval violates the Act. Specifically, G&E's "Outside Speaking and Writing Activities" policy stated that "[p]rior Company approval must be obtained for participation in any outside writing/publishing activities, speaking engagements relating to the Company ... and engaging in similar activities...." Judge Ringler explained that requiring pre-approval for writing and speaking engagements could reasonably be construed to require authorization before speaking at union meetings, writing about workplace issues, "or engaging in a host of other §7 activities." Judge Ringler also found G&E's similar policy of prohibiting employees from speaking to the press or media without prior company approval to be unlawful.

Examples of G&E's Unlawful Policies:

The G&E decision makes clear that the NLRB is broadly interpreting what can be considered potential interference with an employee's right to exercise their §7 rights. Examples of other G&E policies that violated the Act include:

  • Prohibiting employees from making "false statements" about the company (although a policy prohibiting employees from making "maliciously false" statements is lawful);
  • Banning conflicts of interest and/or prohibiting employees from participating in outside work activities that might present a conflict of interest;
  • Requiring that employees receive company permission before responding to requests for information or providing employment references;
  • Bans on non-business use of the company's facilities, equipment and telecommunication systems (including voice mail and email);
  • Prohibiting employees from taking unauthorized workplace recordings, including photos and videos;
  • Barring any disrespectful workplace commentary (which could be construed as criticism toward the employer);
  • Requiring that employees obtain company consent before posting about the company on social media; and
  • Prohibiting employees from speaking to the press or media.

These examples are not exhaustive of all the G&E policies found to violate the Act. However, Judge Ringler's decision provides guidance for what types of policies can potentially land employers in hot water with the NLRB and underscores the importance of keeping up-to-date with current rulings and developments under the Act.

But my company doesn't have a union. Do we have to worry about the Act?

Yes. Although the Act is often associated with union organizing activities, non-unionized organizations are often covered by the Act and are at risk for violating it. The G&E decision is illustrative of the perils presented to employers who fail to comply with the Act. Even though G&E did not have unionized employees, G&E engages in interstate commerce by conducting business across state lines. Many organizations are unaware that they may be subject to the Act's jurisdiction even though they do not have unionized employees. Therefore, it is imperative that both unionized and non-unionized employers review their employee handbooks and determine if any policies could be considered unlawful under the Act. 

The decision and recommended order has been submitted to the NLRB and the deadline to file exceptions is June 7, 2017. If no exceptions are filed, Judge Ringler's order becomes the order of the Board. An ALJ's decision is not binding legal precedent in other cases unless it has been adopted by the Board on review of exceptions. It is unclear how the Board will rule if exceptions are filed. However, Phillip Miscimarra, recently appointed Chairman of the NLRB, has openly criticized the Obama Board's position regarding employee handbooks and policies, stating that the board's current standard for deciding such cases "defies common sense." In multiple dissents, he has called on the Board and courts to overturn and reject the draconian standards applied to handbook policies and institute a new balancing test. He also has emphasized the need for a new standard regarding employee email use to allow employers to limit or prohibit the use of email for non-work purposes. Although we cannot predict the NLRB's future decisions, we expect change to come under Miscimarra's leadership.

Carlton Fields has a team of employment lawyers who are monitoring current NLRB developments and can review and provide guidance for organizations that have questions about their employee handbooks or policies. Please contact a member of our employment practice group for further assistance.

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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