Most employers prohibit solicitation in the workplace, often not allowing outsiders to come onto company property and prohibiting employees from soliciting their coworkers while they are working. The National Labor Relations Act (NLRA) guarantees employees the right to talk to each other about terms and conditions of their employment (e.g., they are allowed to talk about whether they want a union) and makes it an unfair labor practice for an employer to prohibit such discussions. How far can a solicitation policy go in stopping an employee from soliciting his coworkers to join his lawsuit? A three member panel of the National Labor Relations Board (NLRB) affirmed an administrative law judge’s (ALJ) ruling that Dish Network’s policy (and its termination of an employee who violated it) went too far.

Facts.

David Rabb worked for Dish Network for about two years as an Inside Sales Associate (ISA) in a call center in Colorado, selling Dish’s services on the telephone. As with most call center workers, the company had rules about how much time Rabb and other ISAs could be off the phone (e.g., on hold, not available for calls, on break). Violation of those rules resulted in discipline and lost commission. Rabb did not like those rules and complained first to his coworkers (who also did not like the rules), management and ultimately to a Senior Vice President via email in August 2013. When he did not get what he wanted internally, in December 2013 Rabb complained to the Colorado Department of Labor about these practices, but the department found it was outside of its jurisdiction. Rabb’s next step was to talk to a lawyer about filing a lawsuit in January 2014. Not satisfied with pursuing this on his own, Rabb solicited about 15 of his coworkers to join his lawsuit. He testified that he solicited during non-work time, although he may have talked to them in work areas. Enter Dish’s solicitation policy.

Dish had a Solicitation in the Workplace policy that provided, in relevant part:

. . . employees . . . may not distribute literature . . . of a personal nature by any means, . . . or solicit for any other reason during work time or in work areas except as specifically authorized in advance by a vice president or higher. Employees who are not on work time ([e.g.] . . . on lunch or break) may not solicit employees who are on work time.

When one of Rabb’s coworkers complained about Rabb soliciting lawsuit participation, Emily Evans, the General Manager, wanted to fire him immediately. Human Resources took a more measured approach and on February 18, 2014, Rabb was given a warning for violating the Solicitation in the Workplace policy. The warning specifically states that Rabb is not being disciplined for discussing wages or terms and conditions of employment with coworkers (which would clearly violate the NLRA)—just for the solicitation policy violation. Three weeks later, Dish terminated Rabb for putting his phone on hold (instead of taking a break) to go to the bathroom. Not surprisingly, Rabb did not agree that he had done anything wrong and said that Dish terminated him for talking with his coworkers about workplace concerns and asking them to join his lawsuit.

Ruling.

Not only did the ALJ find that Dish retaliated against Rabb, he found that the Solicitation in the Workplace policy was an unfair labor practice. On the retaliation issue, the ALJ found that management “placed Rabb under close scrutiny as a result of his complaints about Dish’s pay practices, and seized upon his longstanding restroom practices, as a mechanism to jettison a perceived malcontent.” Although the ALJ did not appear to believe anything management witnesses said about the decision to terminate Rabb, one factor was that Evans had previously sought his termination for a “minor breach of her unlawful solicitation rule.” The fact that Rabb and other ISAs testified that there was no consistency in how people took restroom breaks and that Dish had not terminated anyone for similar behavior did not help Dish’s cause. As a result, Rabb was reinstated with back pay.

On the policy side, the ALJ found (and the NLRB agreed) that the Solicitation in the Workplace policy is unlawful because it tends to chill employees in the exercise of their rights. Although employers can ban solicitation in working areas during working time, the ALJ noted that the ban cannot extend to (1) nonworking times, (2) nonworking areas, or (3) working areas during nonworking time. He further stated that it is “also generally verboten to require employees to obtain managerial approval prior to engaging in Section 7 activity.”

Takeaways.

On the retaliation front, the biggest takeaway is to be careful when you are dealing with an employee who has complained about something in the workplace. Rabb exercised his Section 7 rights by talking with coworkers about Dish’s pay practices. Terminating him on the heels of that activity is always dangerous. On the policy front, the current NLRB is generally hostile to any restrictions on employees’ rights to engage in concerted activity (like talking about their pay, complaining about their supervisors, wearing union insignia, etc.), so review your solicitation policy before the NLRB reviews it for you. First, you can keep non-employees off of your premises and certainly can keep them out of work areas—as long as you apply that rule across the board and not just to union organizers. Be careful about allowing non-employees to come to your premises to ask for donations or promote something because you may have to allow a union organizer the same access. Second, you can prohibit employees from soliciting coworkers while they or their coworkers are working. You are paying employees to work and you do not have to allow them to solicit on the clock. Again, you have to be consistent when you apply this rule. You cannot allow one employee to sell Girl Scout cookies for her daughter on the clock but not allow another to talk about his lawsuit or how he wants a union on the clock. Third, employees who are on break are on break and they can talk about whatever they want. Finally, be careful about allowing solicitations that otherwise violate the policy if pre-approved by management. This ALJ (as affirmed by the NLRB) says those restrictions are not just bad but “generally verboten.