NLRB Tells Employers to Mind their Own Business

by Seyfarth Shaw LLP
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Seyfarth Synopsis: An Administrative Law Judge held that an employer’s policy of prohibiting employees from conducting personal business at work, along with its social media and solicitation/distribution policies, violated the National Labor Relations Act (“NLRA”).

In Casino Pauma, the NLRB’s General Counsel (“GC”) alleged that four of the employer’s handbook policies violated Section 8(a)(1) of the NLRA.  Specifically, the NLRB took issue with the wording of the following policies: (1) Conducting Personal Business; (2) Solicitation and Distribution; (3) Social Media; and (4) Conflicts of Interest (which relates to solicitation and distribution).

With regard to the policy prohibiting employees from conducting personal business, the GC alleged that such a policy was unlawful because it “bans employees from all of [the employer’s] property except when conducting [the employer’s] business.” The GC contended that “the rule unlawfully restricts off-duty employees from engaging in protected activity; and it prohibits protected activity during nonworking time.”

The solicitation policy was alleged to be unlawful because “it prohibits protected solicitation and distribution ‘if the intended recipient expresses any discomfort or unreceptiveness whatsoever.’”

The GC alleged that the social media policy was unlawful “because it prohibits employees from (1) ‘communicating anything to do with work’ on social media without an employer-approved disclaimer; (2) posting social media references to co-workers without their prior approval; and (3) posting photos ‘in conjunction with work-related postings’ without [the employer’s] prior approval.”

Finally, the GC contended that the conflicts of interest policy unlawfully required the employer’s advance notice before employees could solicit co-workers.

An NLRB Administrative Law Judge (“ALJ”) agreed with the GC that the wording of these policies violated the NLRA.  The ALJ held that the “prohibition against conducting ‘personal business’ on company property and ‘while at work’ can reasonably be read to restrict the communications of employees with each other about union or other Section 7 protected rights in non-work areas and on nonwork time.”  In particular, the ALJ found that the language “while at work” was overly broad.  Moreover, the ALJ found that the term “personal business” was ambiguous enough to include union activity.

With respect to the solicitation, social media, and conflict of interest policies, the ALJ noted that employees are permitted to “engage in persistent union solicitation even when it annoys or disturbs the employees who are being solicited.” The ALJ also found that the employees should not be required to get the employer’s pre-approval in writing.

The ALJ also admonished the employer, by stating that the policies: “restrict the free exercise of [employee’s] Section 7 right to comment to fellow employees and others, including union representatives, about their work-related complaints concerning wages, hours and working conditions.”  With regard to the restriction on posting pictures, the ALJ held that, “[o]ne can easily imagine an employee who observes unsafe conditions in the workplace taking a photo for use by a union, to obtain the support of fellow employees in an effort to resolve the unsafe working conditions, or even to report them to the appropriate government agencies.”

Outlook

When an employee handbook has ambiguous or overbroad language, or has language that could conceivably be interpreted to restrict employees from engaging in broadly defined protected activities, the NLRB will not hesitate to allege a violation of the NLRA. The wording of each policy in an employee handbook must be carefully crafted so as to not restrict employees from communicating about union activity, or wages, hours and other working conditions during employees non-working time.  As such, it is imperative that employers have their handbooks constantly updated, and reviewed by attorneys familiar with the NLRA.

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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