Last week, the U.S. 5^th Circuit Court of Appeals reversed the NLRB on three of the four policies in question.  The Court found that the NLRB used the wrong standard of review when it ruled that a reasonable employee reading the policies could construe them to prohibit conduct protected by the National Labor Relations Act, rather than would construe them that way.

These were the policies involved:

1. Workplace Conduct Policy.  T-Mobile’s policy expected all employees “to behave in a professional manner” and to “maintain a positive work environment” by communicating “in a manner that is conducive to effective working relationships”.  The Court’s decision noted that late night TV host Stephen Colbert mocked the NLRB decision by joking that “the government says I can’t legally ask [my employees] to be happy”.
2. The Court of Appeals found that a reasonable employee would understand this rule to “express a universally accepted guide for conduct in a responsible workplace.”
3. Act With Integrity Policy.  T-Mobile’s policy expected all employees to “exercise integrity, common sense, good judgment, and to act in a professional manner”.  The policy listed acts of unacceptable behavior, including arguing or fighting with co-workers, subordinates, or supervisors, failing to treat others with respect, and failing to demonstrate appropriate teamwork.

   The Court of Appeals found that a reasonable employee would be fully capable of engaging in debate over union activity or working conditions without inappropriately arguing or fighting.

4. Acceptable Use Policy.  This T-Mobile policy prohibited employees from allowing non-approved persons access to any “non-public” company information without prior written consent from T-Mobile.  The NLRB felt that a reasonable employee would construe it to prohibit protected activity such as accessing and sharing wage and benefit information contained in his or her e-mail.

The Court found that the policy only applied to the sort of proprietary business information that an employer may properly restrict its employees from sharing outside the company.

The Court did find that T-Mobile’s policy prohibiting employees from recording people or confidential information using cameras, phones, or recording devices in the workplace was illegal.  The Court felt that the policy was so broad that a reasonable employee would interpret it to discourage protected activity, such as, for example, photographing a wage schedule posted on a corporate bulletin board.  In the Court’s views, such an employee would consider the policy as written as forbidding a means of engaging in protected union-related activity.

This decision provides employers with some clarification on what many thought were common-sense handbook policies.