Why it matters

More than a dozen policies—including one requiring an employer’s approval before a worker could make a social media post—were shot down by a National Labor Relations Board administrative law judge in a decision involving a real estate management services company. Patrick Thurman filed a charge with the agency last year, pointing to several policies in the Newmark Grubb Knight Frank handbook that he said violated the National Labor Relations Act. For example, the company required employees to “avoid activities … inconsistent with the best interests of the company and our clients,” and mandated that workers get permission from management before posting about the company on social media. An ALJ agreed with Thurman that the challenged policies (17 in all) violated the statute. Other policies that failed to pass muster included one banning clothing with printed slogans or promotions, as well as another prohibiting the use of company technology for personal use. The decision serves as a reminder to employers that the NLRB continues to keep a close eye on employer handbooks and policies on a wide range of topics, from clothing to social media to technology use.

Detailed discussion

A national real estate management services company, Newmark Grubb Knight Frank (NGKF) employed Patrick Thurman, who filed a charge with the National Labor Relations Board (NLRB) in June 2016, challenging a total of 17 policies found in the employer’s handbook. Thurman alleged that the policies violated Section 8(a)(1) of the National Labor Relations Act (NLRA) because they were overbroad and employees would reasonably construe them to ban their Section 7 activities.

Following a hearing, Administrative Law Judge (ALJ) Robert A. Ringler agreed, finding each of the policies violated the federal statute.

The employer’s “conflicts of interest” policy, for example, stated that NGKF expects “our employees to … always avoid activities … inconsistent with the best interests of the Company and our clients,” with workers required to “promptly disclose” any conflicts of interest.

“This policy, which bans conflicts of interest and has an ongoing disclosure requirement, is unlawful, given that it can be reasonably construed to bar any Section 7 activities conflicting with [the employer’s] interests,” the ALJ wrote. For the same reason, an “outside employment and business activities” policy that prohibited employees from “participating in outside work activities that might present a conflict of interest” was similarly thrown out.

A policy requiring that any reference inquiries and requests for employee information be forwarded to the Human Resources Department “may reasonably be construed to ban employees from engaging in their Section 7 right to discuss wages or other workplace issues amongst themselves or with a union,” and a “confidentiality” policy subjecting workers to disciplinary action, up to and including termination, for disclosing confidential company information failed for the same reason.

Three policies—on “telecommunications usage,” “use of company information technology” and “company property”—all ran afoul of Section 7 because their prohibitions on employee use could all be reasonably construed by employees to bar unauthorized solicitation and other protected activity outside of working hours on the employer’s premises, as well as the use of its email systems, phones and IT systems during nonworking time for Section 7 activities, the ALJ said.

A ban on tape recordings was also found unlawful. “This policy, which prohibits unauthorized workplace recordings, unlawfully and over-broadly encompasses recordings made for one’s own mutual aid and protection,” the decision said, which might include recording images of protected picketing, documenting unsafe workplace equipment or hazardous working conditions, or publicizing discussions about terms and conditions of employment.

The employer’s “respectful workplace policy,” setting guidelines that all employees and guests “should be treated with courtesy and respect at all times” was tossed because it “essentially bars any disrespectful workplace commentary” and “employees could reasonably construe this rule to ban statements of criticism toward their employer, which are generally protected,” the ALJ wrote.

NGKF’s social media policy presented additional violations of the NLRA based on language such as “only those types of social media that have been approved by the Company … are permitted” and “[a]s a general matter, use of social media that provides for communication that the Company cannot capture and/or monitor (e.g. Twitter … and similar apps …) is prohibited.”

The employer’s “mandate that employees obtain consent before posting about the company on social media is unlawful … as they over-broadly limit employees’ Section 7 rights to engage in collective activities online,” the ALJ said.

Several other policies within the handbook were declared unlawful, from one requiring prior approval for outside speaking and writing activities to another setting rules on handling press inquiries, as well as policies requiring cooperation in investigations and litigation and another prohibiting “clothing with printed slogans/promotions,” as NGKF failed to establish special circumstances justifying the rule. Finally, a “Standards of Conduct” policy reiterated several portions of other unlawful policies and was, accordingly, struck down as well.

Concluding that a total of 17 policies violated the NLRA, the ALJ ordered the employer to cease and desist use of the policies and rescind them from the company’s handbook, as well as to distribute inserts and post a notice to that effect on a nationwide basis.

To read the decision in BCG Partners, Inc., click here.