The National Labor Relations Board continues its focus on the legality of common employee handbook provisions and work rules. As outlined in the selected case summaries below, employers – whether unionized or not – must remain cognizant of the board’s heightened scrutiny of policies that govern employee behavior inside and outside of the workplace. It would not be an unfair assumption to state that some employers likely (yet unintentionally) maintain policies that violate the current board’s interpretation of the National Labor Relations Act.
Under Section 7 of the act, employees have the right to engage in concerted activities for their mutual aid or protection. Section 8(a)(1) of the act makes it unlawful for an employer via statements, conduct, or adverse employment actions to interfere with, restrain, or coerce employees in the rights guaranteed in Section 7. The test for evaluating whether an employer’s conduct or statements violate Section 8(a)(1) is whether the statements or conduct have a reasonable tendency to interfere with, restrain or coerce union or protected activities. If the work rule restricts Section 7 activity, it is unlawful. However, even if the rule does not explicitly restrict Section 7 activity, it is unlawful if employees would reasonably construe the language of the rule to prohibit Section 7 activity.
In Hills and Dales General Hospital, 360 NLRB No. 70 (2014), the board found unlawful workplace policies banning “negativity” and “negative comments.” There, the hospital addressed employee morale and satisfaction concerns by developing a statement of values and standards. Using the values and standards statement of another employer, the hospital distributed a draft set of standards to all employees for review and comment. After editing the draft standards based on employee feedback, the hospital circulated two additional drafts to employees before settling on a final Values and Standards of Behavior Policy. The policy covered a range of topics, including customer service, respect, teamwork, attitude, continuous improvement and fun. However, the acting general counsel for the board charged the hospital with violations of Section 8(a)(1) based on the following paragraphs from the Values and Standards of Behavior Policy:
11) We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other.
16) We will represent Hills & Dales in the community in a positive and professional manner in every opportunity.
21) We will not engage in or listen to negativity or gossip. We will recognize that listening without acting to stop it is the same as participating.
The board found all three statements to be unlawful because employees could reasonably view the policies as preventing them from engaging in any public activity or making any public statements not perceived as positive toward the hospital. The board agreed with the administrative law judge’s (ALJ) finding that a rule prohibiting negative conversations about managers would be reasonably construed by employees to bar them from discussing with their coworkers complaints about their managers that affect working conditions, causing employees to not engage in protected activities.
The board rejected the hospital’s contention that the rules could not be found unlawful without evidence of a linkage to protected concerted activity. The board also rejected an argument that employee involvement in developing the rules removed any ambiguity as to their meaning.
In Quicken Loans Inc., 359 NLRB No. 141 (2013), the board held a non-disparagement provision in an employment agreement was unlawful because employees would reasonably construe its provisions as restricting Section 7 activity. The provision stated:
“You agree that you will not (nor will you cause or cooperate with others to) publicly criticize, ridicule, disparage or defame the company or its products, services, policies, directors, officers, shareholders, or employees, with or through any written or oral statement or image (including, but not limited to, any statements made via websites, blogs, postings to the internet, or emails and whether or not they are made anonymously or through the use of a pseudonym). You agree to provide full cooperation and assistance in assisting the company to investigate such statements if the company reasonably believes that you are the source of the statements. The foregoing does not apply to statutorily privileged statements made to governmental or law enforcement agencies.”
The board adopted the administrative law judge’s conclusion that an employee reading this policy could reasonably construe it as restricting the right to engage in protected concerted activities. The ALJ explained that within certain limits employees have a Section 7 right to criticize their employer and its products, and employees sometimes do so in appealing to the public or fellow employees to gain their support.
Also, the board held in Karl Knauz Motors Inc., 358 NLRB No. 164 (2012), that the following employee handbook provision violated the act: “Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the dealership.”
The board held this rule was unlawful because employees “would reasonably construe its broad prohibition[s] … as encompassing Section 7 activity, such as employees’ protected statements … that object to their working conditions and seek the support of others in improving them.”
In Design Technology Group LLC d/b/a Bettie Page Clothing, 359 NLRB No. 96 (2013), the board held that an employer violated the National Labor Relations Act by maintaining a rule in its handbook prohibiting disclosing wages or compensation to any third party or other employee. The rule stated: “Compensation programs are confidential between the employee and the company. Disclosure of wages or compensation to any third party or other employee is prohibited and could be grounds for termination.”
The ALJ found, and the board agreed, that Section 7 of the act protects the right of employees to discuss wages and other benefits with each other and with non-employees, and an employer may not prohibit employees from doing so.
Likewise, in MCPc Inc., 360 NLRB No. 39 (2014), the board held that an employer violated Section 8(a)(1) of the National Labor Relations Act by maintaining the following language in a confidentiality rule in its employee handbook: “Dissemination of confidential information within the company, such as personal or financial information, etc. will subject the responsible employee to disciplinary action or possible termination.”
The NLRB found that employees would reasonably construe this language to prohibit discussion of wages or other terms and conditions of employment with their coworkers.
Further, in Quicken Loans, in addition to striking down the non-disparagement provision, the board found it was unlawful to prohibit employees from disclosing: (1) non-public information relating to personnel; and (2) personnel information including personnel lists, rosters, personal information of co-workers, handbooks, personnel files, home phone numbers, cell phone numbers, addresses, and email addresses.
The ALJ found these restrictions would substantially hinder employees in exercising their Section 7 rights because employees could not discuss with others, including fellow employees or union representatives, the wages and benefits they receive or the names, wages, benefits, addresses or telephone numbers of other employees.
In World Color (USA) Corp., Subsidiary of Quad Graphics Inc., 360 NLRB No. 37 (2014), the NLRB held that an employer’s policy of prohibiting employees from wearing any baseball caps other than company caps violated Section 8(a)(1) of the Act. The Board stated that the policy prohibited employees from engaging in the protected activity of wearing caps bearing union insignia. The board found the prohibition was not part of a company uniform policy, and an employer cannot avoid the “special circumstances” test by requiring its employees to wear uniforms or other designated clothing.
Likewise, in Target Corp., 359 NLRB No. 103 (2013), the board affirmed an ALJ’s finding a retail store violated the National Labor Relations Act by maintaining a dress code policy, which stated: “Don’t wear any buttons or logos on your clothing (unless approved by your team leader).”
The employer argued that because its established brand was “red and khaki,” which permitted an employee to be identified as a team member, any button or logo that detracted from that identification interfered with its carefully crafted public image and business plan. However, the ALJ stated that an employer cannot avoid the “special circumstances” test by requiring its employees to wear uniforms or other designated clothing, thereby precluding the wearing of clothing bearing union insignia.
In American Baptist Homes of the West d/b/a Piedmont Gardens, 360 NLRB No. 100 (2014), the board held that a nursing home violated Section 8(a)(1) of the NLRA by maintaining a policy prohibiting employees from remaining on its premises after their shift “unless previously authorized by” their supervisor. While the board acknowledged the general prohibition of off-duty access is lawful, it found the employer’s policy unlawful because it provided the employer with unlimited discretion to decide when and why employees may access the nursing home facility.
The NLRB disregarded the employer’s actual practice of allowing off-duty access only in three limited circumstances: when an off-duty employee picked up her paycheck; attended a scheduled meeting with human resources; or arrived early for the night shift.
The Natonal Labor Relations Board continues to find “standard” employee handbook provisions and work rules to violate the act even absent any direct link to protected concerted activity by employees or intent to restrict protected activity. Employers should carefully review current and proposed policies to avoid broad language that may unintentionally infringe – at least in the current Board’s view – on Section 7 activity. •