A spate of recent decisions by the National Labor Relations Board (NLRB) has invalidated routine policies like those found in most employee handbooks. The Acting General Counsel of the NLRB has also signaled that he will give extra scrutiny to certain employee misconduct rules. Policies on social media, confidentiality, trade secrets, work rules, non-solicitation, disparagement, outside activities, and professionalism have drawn the most scrutiny. To avoid inadvertently running afoul of these new NLRB rulings, employers must review and perhaps rewrite a host of policies, whether their workforce is unionized or not.
The NLRB’s new-found penchant for putting routine and common-sense rules and policies under a National Labor Relations Act (NLRA) microscope to find violations can have major consequences. Not only can the Board conclude that an employer’s policy is unlawfully overbroad or vague, it can find that discipline or a discharge based upon such an unlawful policy constitutes an independent unfair labor practice that must be reversed, and remedied with backpay and interest.
Given the fine line between policies that rightfully protect the company and those the NLRB would likely view as unfair labor practices, it is no longer possible to create an off-the-shelf set of “acceptable” policies. Instead, we recommend that every employer consider its particular business objectives, corporate culture and industry-specific circumstances when navigating these legal issues. Often the revisions can be easily accomplished as part of an annual review of the employee handbook. But we recommend such a review as soon as possible.
The policies at issue in the most recent NLRB cases relate to employers’ attempts to limit employees’ communications regarding wages, hours, and working conditions. Typical employer social media policies that include the following are now likely unlawful: prohibitions against disparaging comments about the company or managers; broad prohibitions against disclosure of company information; prohibitions on social media posts that could negatively impact the employer’s reputation; and requiring employees to obtain employer consent before posting anything or identifying themselves as employees of the company.
Therefore, it is critical for all employers to immediately review their handbook policies and seek legal advice to develop definitions and include examples that reflect thorough and practical bases for each policy at issue, and how to draft rules and policies that will pass legal muster.
The best approach is to (a) include a specific disclaimer in each section of the handbook that might implicate the NLRA, (b) replace vague or overbroad terms such as “appropriate,” “inappropriate” and “professional” with specific examples of prohibited conduct, (c) clarify your intentions by placing rules in context (i.e., if requiring employee disclaimers in personal use of social media, put it in a policy directed toward promotional content and compliance with consumer protection laws), and (d) provide specific examples of concerted activities that are permissible versus the impermissible behavior the policy is intended to prohibit.
The NLRB’s recent decision in The Roomstores of Phoenix, LLC, 357 NLRB No. 143 (Dec. 20, 2011) is instructive. That case illustrates how the NLRB intends to scrutinize and dissect handbook policies to uncover provisions it would deem unlawful. Most often, the NLRB will invalidate rules on the grounds they are overly broad, fail to define key terms, or fail to disclaim the intent to infringe on employee rights under the NLRA. A general disclaimer that the employer in no way intends to limit the right of employees to discuss the terms and conditions of their employment on their own time in non-work areas is no longer considered sufficient by the NLRB, and overly broad policies must be narrowed and terms carefully defined.
Examples of rules the NLRB invalidated in Roomstores:
- “Trespassing on company property when off duty” is prohibited.
- “Collusion with another employee in order to violate company policy” is prohibited.
- “As an employee … you must not use information obtained from company records, vendor records or customer records for your own personal use.”
- “You should not engage in any outside activity that would conflict in any way with the interests of the company or could result in criticism or have an adverse effect on the company.”
- Sales associates agree “not to disclose to anyone outside of the Company or use in other than company business any confidential information relating to the business of the Company.”
- Sales associates “will not attempt directly or indirectly to induce or encourage other Company employees to terminate their employment or attempt to induce or influence any prospective employees to decline employment.”
- “Absolutely NO confrontations on the floor. Any type of negative energy or attitudes will not be tolerated and you will be sent home for THREE days and terminated if it happens again. If you cannot be a positive part of the team I don’t want you on the team.”
In each instance, the Board found that the rules were invalid because they clearly prohibited protected conduct; were overly broad and, therefore, susceptible to an unlawful interpretation; and/or were applied in an unlawful manner.