In a continuation of legal challenges to seemingly appropriate employer conduct rules, the National Labor Relations Board (“NLRB”), on April 13, 2016, issued another decision that will make employers even more nervous about the legality of their rules that are intended to assure “harmonious interactions and relationships.” Indeed, the NLRB in a 2-to-1 decision, over a strong dissent, held that rules expressly intended to prohibit any conduct that “impedes harmonious interactions and relationships” to be unlawfully overbroad. Furthermore, the NLRB found several other rules to be unlawful.

Employer Rules of Conduct Are Targeted

In the past several years, the NLRB has been targeting employer rules in the private sector that may reasonably interpreted by employees to interfere with their rights under federal law to organize and to engage in concerted activity for their mutual aid and protection. We have followed the NLRB’s focus on these rules in the past. See our articles: Employer Handbook Rules – NLRB Memo says What’s Lawful and What’s NotMore Employer Policies Challenged – Where Exactly is the Line?; and NLRB Attacks Employer Handbooks Again.

The latest case arose in 2011 when an unfortunate patient incident that eventually resulted in the resignation of a highly regarded nursing staff member. The hospital then learned that other senior nursing staff members were allegedly engaging in bullying and intimidating conduct and for which they were fired. Charges were then filed with the NLRB, which found the firings to be lawful (they weren’t fired because of a rule violation), but the NLRB looked to the rules and found some of them to be overbroad and unlawful.

Seemingly Normal Well Intentioned Rules – Held Unlawful

Here is the “Code of Conduct for Surgical Services and Perianesthesia” that the NLRB focused on in reaching its conclusion that some of the rules were overbroad and unlawful because employees could construe them to limit their protected federal rights. The unlawful portions are highlighted in bold.

It is the intention of [The Hospitals] to foster effective working relationships among all hospital employees and physicians in order to provide and maintain high quality and safe patient care. Such relationships must be based upon mutual respect to avoid disruption of patient care or to hospital operations. It is the expectation of hospital management that employees and physicians promote and maintain a professional environment in which all individuals are treated with dignity and respect.

Conduct on the part of a [Hospital] employee or physician that is inappropriate or detrimental to patient care of [sic] Hospital operation or that impedes harmonious interactions and relationships will not be tolerated. Transgressors shall be subject to appropriate remedial or corrective action.

Improper conduct or  inappropriate behavior or defiance in the following example [sic], which includes but not limited [sic] to the following:

  • Willful and intentional threats, intimidation, harassment, humiliation, or coercion of employees, physicians, patients, or visitors.
  • Profane  and  abusive  language  directed  at employees, physicians, patients, or visitors.
  • Behavior that is rude, condescending or otherwise socially unacceptable. Intentional misrepresentation of information.
  • Verbal comments or physical gestures directed at others that exceed the bounds of fair criticism
  • Negative or disparaging comments about the moral  character  or  professional capabilities of  an employee or physician made to employees, physicians, patients, or visitors.
  • Behavior that is disruptive to maintaining a safe and healing environment or that is counter to promoting teamwork.

A “Modest Practical Impact?”

Although the NLRB found that these rules were unlawful, the remedy, according to the NLRB,  “is modest–an order requiring modification of a few provisions of an extensive employer handbook, the vast majority of which was either unchallenged or upheld. In short, this case is (or at least should be) a relatively unremarkable application of well-established law to uncontroverted fact.” Perhaps that’s all well and good since no employee was found to have suffered any adverse action (discipline/termination) because of a violation of the overbroad and unlawful rule. Had the hospital taken adverse action based on the unlawful rule, the practical impact would have been anything but “modest.”

Heads up for Private Employers

This latest decision should serve as a reminder to private employers to carefully review all existing policies and rules to make sure that they can’t be misconstrued to interfere with protected employee rights under federal law.