Earlier this month EPTW reported on a Fifth Circuit Court of Appeals decision in the employers favor upholding that employer’s clearly stated directions on reporting discrimination. The US Fifth Circuit issued another opinion at the end of July that also supported clearly written employer policies or rules and at the same time, pushed back at the pro-labor National Labor Relations Board (NLRB) rulings in the last few years.
For the past eight years the NLRB has attacked non-union employers’ employee handbooks by challenging policies that they claim infringe on workers’ rights to engage in “protected concerted activity.” That is NLRB-speak for employer rules that, it argues, threaten a worker’s right to organize or act as one another’s mutual protection as protected by the National Labor Relations Act, Section 7.
These NLRB decisions have continually challenged rules previously believed to be innocuous. This has resulted in many employers (non-union) defending themselves from charges of illegal labor practices. Many employers run to legal counsel, employers’ associations or elsewhere for help understanding and sanitizing their handbook polices – policies that for years or decades were deemed legal and reasonable rules.
As we stated a couple of weeks ago, the legal challenges to the NLRB rulings of the past eight years are now being looked at by the arguably more reasonable legal and judicial environment of the federal courts. And because the federal courts should practice a less politically biased view of the law, they are finding these NLRB agency rulings incorrect.
In the case at hand, the employer [T-Mobile] rules that the NLRB first found illegal and the Fifth Circuit said was legal, involved simple rules that told employees at T-Mobile to be 1. professional and “maintain a positive work environment.” 2. “Do not argue or fight or fail to treat others with respect” and a third rule that “prohibited access to electronic information by non-approved individuals.” To the NLRB the first two rules could result in workers “reasonably construe[ing] the rule to restrict potentially controversial or contentious communications and discussion, including those protected by Section 7 and 8 of the [NLRA], out of fear that the [employer] would deem them to be inconsistent ‘positive work environment.’”
The US Fifth Circuit Court of Appeals, rejecting the NLRB’s ruling, stated that the NLRB was the unreasonable one. The Court ruled that the NLRB does not infer that “reasonable employee[s} would understand the rule[s] did not prevent him/her form engaging in protected activity.”
To re-emphasize what ASE stated in its August 16th EPTW article, “Employee Handbooks Continue to Rule as Far as Courts are Concerned,” courts will rely on employer handbooks, job descriptions and other human resources documentation to rule in favor of, or against an employer. So, employers need to make sure the document is updated and as clearly as possible states what the employer wants it to say.
One other employer rule the NLRB has found illegal is the blanket prohibition against all photography and audio and video recording in the workplace. Employers that have security and intellectual property concerns, to state it simply, often have rules stating “no picture taking at work.” T-Mobile also had such a rule. The Fifth Circuit could not bring itself to overturn the NLRB’s holding of illegality on that rule. The Court of Appeals found this rule too broadly stated. Employees could interpret the rule as banning all recording and “videotaping” of “protected activity”– some of which the law allows them to do. The examples provided were somewhat “out there” however. The Court cited it was possible that employees may want to photograph wage information posted by the employer, and the broadly stated rule would be interpreted as restricting that. In any case, employers should closely review any security rule limiting photography, video or auditor recordings and craft a rule that states what images or recordings can not be taken.
The good news is with the administration changing over the make-up of the pro-labor NLRB and the federal courts now reviewing those “radical” pro-labor decisions, employers should see more reasonable interpretation of previously innocuous rules. The less than good news is, given these rules were there for good reason in the past, employers may now have to go back and review them again.
ASE members have the advantage of their association keeping watch on the regulatory agencies and the judiciary for decisions that impact employment and labor policy and rule, reporting them in the ASE EPTW, Forums, Hot Button Briefing, Conferences, and other ASE networking and informational venues.
Sources: T-Mobile USA, Incorporated v NLRB 5th Circuit Court of Appeals 7/25/2017; Woo-Hoo! Federal Court Overrules NLRB, Says Companies Can Require Employees To Promote Positivity Barnes and Thornburg article 8/23/2017.