Where workplace policies are found to interfere with employees' protected rights to engage in a union or other concerted activity, including the right to discuss terms and conditions of employment, they may be deemed unlawful under the National Labor Relations Act (NLRA).

In Guardsmark, LLC v. NLRB, the federal D.C. Court of Appeal recently held that an employer's anti-fraternization policy violated the NLRA. Guardsmark, a nationwide company providing security guard services, included in its employee handbook a section stating that employees must not "fraternize on duty or off duty, date or become overly friendly with the client's employees or with co-employees." The NLRB had ruled that the anti-fraternization provision was lawful because employees would reasonably understand the rule to prohibit only romantic personal relationships rather than any activity protected by the NLRA. See July 12, 2005 article.

However, the D.C. Court of Appeal disagreed, and held that the policy was unlawful. After consulting numerous dictionaries on the meaning of "fraternize," the court concluded that each source listed fraternal association as the primary meaning, with social and intimate associations as a secondary meaning. Therefore, the court held that Guardsmark's fraternization provision would have a chilling effect on employees' rights because they would reasonably interpret the rule to prohibit discussion about terms and conditions of employment within their union – a fraternal association as found in the definitions.

The court also noted that Guardsmark's alleged business justification for the rule - that it was intended to provide safeguards so that security will not be compromised by interpersonal relationships between guards - could still be served without violating the NLRA. For example, Guardsmark's goal still could have been achieved either by removing the word "fraternize" altogether and defining personal or romantic relationships, or by adding an exception for protected activity. The court also held that two other Guardsmark restrictions — one forbidding workers in uniform from solicitation and distribution of literature, and the other forbidding workers from voicing work-related complaints outside the chain of command—were also unlawful under the NLRA.

This decision is instructive of the care with which employers must draft workplace policies to ensure they do not directly or indirectly interfere with an employee's right to discuss work conditions. Furthermore, anti-fraternization policies are subject to great scrutiny, especially under California law, and should be carefully drafted to avoid interference with employees' lawful conduct during non-working hours.