Similar to our blog post last week on the National Labor Relations Board (NLRB) General Counsel’s guidance memorandum on employee handbooks, a NLRB administrative law judge (ALJ) last week ruled that two handbook provisions that once passed muster are no longer okay. In a decision that pre-dates the GC guidance memorandum, the ALJ found that a handbook rule prohibiting “[a]ny activity which causes harm to the operations or reputation of” the employer to be overly broad and unlawful. According to the ALJ, an employee could reasonably believe that a work strike or complaint to other employees about wages (including complaints on social media) were prohibited because such activities would cause harm to the operations or reputation of the employer. (It is notable that these activities are protected concerted activity under the National Labor Relations Act, regardless of the employee’s union status.)

In addition to the rule about harm to the operations or reputation, the ALJ also held that a rule barring “[a]ny action that “jeopardizes company contracts or loss of revenues” is unlawful. The ALJ reasoned that an employee could reasonably conclude that union organizing activity leading to the formation of a collective bargaining agreement could have a negative effect on existing contracts or revenues of the Company.

Additionally, the ALJ reasoned that both rules were overbroad because nothing in the handbook suggested protected activity was excluded from the rules. The ALJ stated in a footnote that the employer could have made each provision lawful by expressly excluding protected concerted activity and union organizing activity from the prohibitions.

Notably, the ALJ found against the employer even though the employer withdrew the rules almost a year before the decision because the handbook provisions had been in place for almost two years before their withdrawal.

The lesson for employers: any ambiguous handbook provision will be construed against the employer and if there is any reasonable way in which an employee could view the provision as restricting Section 7 rights, the provision will be considered unlawful by the NLRB. The jury is still out on whether a federal court would agree with the NLRB.  Very few of the NLRB’s handbook policy decisions have been appealed that far.

The decision is Latino Express, Inc. and Teamsters Local Union No. 777, No. 13–CA–122006 (Mar. 17, 2015).