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Executive Summary: On the same day as the D.C. Circuit Court of Appeals determined President Obama's recess appointments are unconstitutional, the NLRB continued its assault on workplace rules and employee handbook policies. See DirecTV U.S. Direct Holdings, LLC, 359 NLRB No. 54 (Jan. 25, 2013). Regardless of whether the Board's decision withstands the D.C. Circuit's ruling, the case serves as a warning to employers to review their handbooks and other workplace policies to ensure compliance with the Board's most recent interpretations of the NLRA.
At issue in this case were four work rules maintained by the employer: two provisions set forth in the Company's employee handbook and two corporate policies maintained on its intranet system. For various reasons, the Board found each provision violated the NLRA.
The first provision at issue was a policy dealing with work-related communications with outside media. Among other things, the policy expressly instructed employees, "Do not contact the media." The Board held reasonable employees would construe this language as prohibiting them from communicating about labor disputes with newspaper reporters. Because the rule failed to distinguish unprotected communications, such as maliciously false statements, the Board determined the rule violated Section 7.
The second provision discussed by the Board related to employee communications with "law enforcement." In pertinent part, the provision stated, "If law enforcement wants to interview or obtain information regarding a [Company] employee, whether in person or by telephone/email, the employee should contact the security department . . . who will handle contact with law enforcement agencies . . . ." The Board found employees could reasonably conclude that "law enforcement" encompassed the NLRB's own agents whose duty it is to investigate and enforce the Act. While the Board acknowledged an employer's legitimate interest, in certain circumstances, in knowing about law enforcement agents' attempts to interview employees, the Board held this interest did not support the "broadly written" prohibition in the rule.
Finally, the Board also struck down the Company's rules regarding confidentiality and company information. The confidentiality provision instructed employees to "[n]ever discuss details about your job, company business, or work projects with anyone outside the Company" and to "[n]ever give out information about [the Company's] customers." The Board determined reasonable employees would understand the explicit prohibition on releasing information concerning the "job" or fellow employees to restrict discussion of their wages and other terms and conditions of their employment. Thus, the Board deemed the provision to violate the employee's Section 7 rights. Likewise, the "company information" provision, which was posted on the Company's intranet, prohibited employees from blogging, entering chat rooms, posting messages on public websites or otherwise disclosing "company information" that was not already disclosed as public record. While this policy was not unlawful on its face, the Board noted the policy must be read in tandem with the unlawful confidentiality provision in the employee handbook. Reading the two policies in tandem, the Board determined, created an understanding that the intranet policy would prohibit disclosure of "employee records," which would include information concerning their own or fellow employees' wages, discipline, and/or performance ratings. Thus, the Board found the provision unlawful.
Employers' Bottom Line:
This decision is a continuation of the Board's focus on employee handbooks and policies. As the percentage of unionized workers in America continues to fall, the NLRB is certain to continue this focus to maintain its relevance. Despite the D.C. Circuit's ruling calling into question the Board's recent decisions as well as its current authority, the Board has indicated it plans to ignore the D.C. Circuit's opinion and continue operating with its present members. Therefore, to avoid becoming a target, employers should review their workplace policies, including employee handbooks, to ensure their policies comply with the Board's most recent interpretations of the law.
If you have any questions about the issues discussed in this Alert or other labor or employment related questions, please contact the FordHarrison attorney with whom you usually work or the author of this Alert, Joshua Sudbury, firstname.lastname@example.org, who is an attorney in our Nashville office.
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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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