As first reported in the March 24, 2015 eLABORate, 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 or not employees are members of a union. 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 their cell 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.