The Alice in Wonderland NLRB Queen Continues to Chop the Heads off Handbook Policies - American Society of Employers - Michael Burns

The Alice in Wonderland NLRB Queen Continues to Chop the Heads off Handbook Policies

As we have covered for several years now, the National Labor Relations Board (NLRB) continues to find potentially unfair labor practices in long standing, innocuous employee handbook policies. The NLRB has challenged the following employer policies over the last four years or so:

·        Conflict of interest policies

·        Solicitation and distribution policies

·        Media and third party contact policies

·        Social networking/media policies

·        Confidentiality and proprietary information policies

·        Conduct toward the employer and its supervisors and managers policies

·        Conduct toward fellow employees policies

·        Rules restricting the use of company logos, copyrights and trademarks

·        Rules restricting the recording, photographing or videotaping of certain events or situations

·        Rules restricting leaving work without permission

·        Any rule that even slightly infers an employee could not discuss wages, benefits and terms and conditions of employment

This last overarching NLRB policy challenge is what the Casino Pauma ran into with their handbook policy that limits conducting personal business on company time. The NLRB’s General Counsel found the Casino’s policy statement banning “employees from all of the employer’s property except when conducting [the employer’s] business” unlawfully restricts off-duty employees from engaging in protected activity, and it prohibits activity during non-working time.

The NLRB administrative law judge (ALJ) agreed with the General Counsel that the wording of that policy as well as three others (no solicitation and distribution policy, social media policy and conflict of interest policy) all violated the National Labor Relations Act (NLRA).  Specific to the conducting personal business policy, the ALJ stated:

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 non-work time. 

Seyfarth Shaw LLP law firm reported that “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.”

A policy or rule that restricts conducting personal business on company time is fairly common and makes sense for some employers.  This rule is intended to focus employees on their jobs in order to avoid mistakes and meet production deadlines.  It is meant to discourage personal activity that takes away from work, such as playing Pokémon Go or updating one’s Facebook page.

So there is now another handbook policy/rule that must be reviewed, and if it’s too broad, revised and restricted in order to not offend the NLRB’s sensibilities.


Source:  “NLRB Tells Employers to Mind Their Own Business” Employment Law Lookout– Insights for Management (7/28/2016)

ASE provides employee handbook review services that assist employers’ identification of potentially unlawful policies and provide sample policies where missing. ASE also has a class for HR professionals that discusses employee handbook development and review. The next session of this class is August 25th at ASE’s Livonia office. Register here.  Contact Michael Burns for additional information.
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