Over the past three weeks, the National Labor Relations Board issued three separate decisions that further signal the Board’s continued focus on employer personnel policies. The Board examined whether employees, unionized and non-unionized alike, would “reasonably conclude” that the facially neutral policies required them to refrain from engaging in protected concerted activities.
Included within this trifecta was the Board’s first decision specifically addressing an employer’s social media policy. In Costco Wholesale, Inc., 358 NLRB No. 106 (Sept. 7, 2012), the Board determined that the company’s electronic posting rule prohibiting statements that “damage the Company . . . or damage any person’s reputation” was overly broad because it encompassed complaints about the company’s treatment of its employees. The Board largely applied the legal reasoning set forth in the GC’s social media reports (see here, here, and here)– confirming that these reports do provide employers useful guidance on the issue. The Board signaled that if the social media policy is narrowly directed at preventing egregious misconduct, like “sabotage and sexual or racial harassment,” it could withstand scrutiny. On this point, the Board adopted the ALJ’s decision upholding the company’s requirement that employees use “appropriate business decorum” in communicating with others, because the rule promoted “a civil and decent workplace.” It is this juxtaposition between the Board’s findings on the impermissible social media policy and permissible decorum rule that employers should continue to monitor. Perhaps the Board will provide clarification in future decisions.
The Costco decision also determined that handbook provisions restricting employees from sharing private or otherwise sensitive information about sick days, leaves of absence, FMLA leave, ADA issues, workers’ compensation injuries, personal health information, payroll, Social Security numbers, and employee names, addresses, telephone numbers and email addresses, unlawfully restricted employees from discussing terms and conditions of employment and, thus, violated the Act.
In Flex Frac Logistics, LLC, 358 NLRB No. 127 (Sept. 11, 2012), the Board struck down a provision in the company’s at-will employment agreement that prohibited employees from disclosing “confidential information,” including “personnel information,” to individuals “outside the organization.” The Board held that the provision necessarily prohibited employees from discussing the terms and conditions of their employment with union representatives. To the extent the provision was ambiguous, it was construed against the employer because it could reasonably be read to have coercive meaning and “[e]mployees should not have to decide at their own peril what information is not lawfully subject to such a prohibition.”
Finally, the Board recently concluded that two employers’ policies were unlawful restraints against permissible labor actions. In TT&W Farm Products, Inc., 358 NLRB No. 125 (Sept. 11, 2012), the Board examined five handbook rules directed at employees leaving their workstations during worktime. The Board determined that the rules reasonably read to prohibit unauthorized leaves or breaks were permissible. However, the rules prohibiting employees from “walking off the job” or from “willfully restricting production” were unlawful because they prohibited participating in a protected strike. In Ambassador Services, Inc., 358 NLRB No. 130 (Sept. 14, 2012), the Board struck down a work rule prohibiting “walking off the job and/or leaving the premises during working hours without permission” as violating Section 8(a)(1) because it would reasonably be construed as prohibiting Section 7 activity.
It is clear from these decisions that the Board’s heightened interest in handbooks and personnel policies is not waning. It is likely the Board will continue examining commonplace work rules in both non-union and union facilities to determine whether they reasonably tend to interfere with Section 7 rights. Employers should continue to monitor developments in this area going forward for any further guidance or clarification that can be parsed from the Board’s directives on the issues. For more analysis on the Board’s Costco decision and employer social media policies, please see the Littler Workplace Privacy Counsel blog entry.