By Taron K. Murakami

Employees will not make “negative comments about our fellow team members” and will not “engage in or listen to negativity or gossip.”[1]

Company prohibits “discourteous or inappropriate attitude or behavior to passengers, other employees or members of the public,” and “disorderly conduct during working hours.”[2]

“Gossip is not tolerated at [the Company].  Employees that participate in or instigate gossip about the company, an employee, or customer will receive disciplinary action.”[3]

Dissemination of confidential information within the Company, such as personal or financial information, etc., will subject the responsible employee to disciplinary action or possible termination.[4]

Do these policies look familiar to you?  Perhaps you have them, or similar versions, in your company’s employee handbook.  Employers often put in writing the expectations for its employees’ conduct, with the “standard language” that violation of those policies can lead to discipline up to and including termination of employment.  Employers may be surprised to learn, however, that the National Labor Relations Board (“NLRB”) recently found each of the above policies to be unlawful under the National Labor Relations Act (“NLRA”).

An employer’s maintenance of an overly broad rule or policy can be held to interfere with the rights of employees to engage in activity protected by Section 7 of the NLRA, which gives employees the right to form, join or assist unions, bargain collectively through representatives and engage in other “concerted activities.”  Although some employers assume that Section 7 protects only conduct engaged in during union organizing activity or in an already union workplace, the NLRB applies these protections to non-union workplaces as well as those where the employees may have no interest in unionizing.

The NLRB’s determination of whether a policy or rule violates the Act typically turns on a showing of one of the following:

  • Employees could reasonably construe that the language prohibits Section 7 activities;
  • The rule is promulgated in response to union activity; or
  • The rule has been applied to restrict the exercise of Section 7 rights.

The NLRB found that each of the above policies was overbroad and could reasonably be construed by employees to prohibit protected concerted activity under Section 7.

In another example, earlier this year, an NLRB administrative law judge found unlawful several policies that related to providing service to customers. [5]  Specifically, the ALJ found that a restaurant’s policies prohibiting “insubordination to a manager or lack of respect and cooperation with fellow employees or guests” and “disrespect to guests including discussing tips, profanity or negative comments or actions” interfered with protected rights.  It is hard to believe that an employer, particularly one in the service industry, could not establish a policy that requires its employees to treat its customers with respect, but, that is exactly what happened here.  This case is more fully discussed here.

Further complicating things for employers is the lack of clarity in the NLRB’s many different decisions striking down these so-called “overbroad” handbook policies, making it difficult to predict whether a given rule or policy will be deemed lawful or not.  Even worse, the NLRB has been scrutinizing employer policies even when its investigation arose from employee complaints that have nothing to do with the employer’s policies in the first place.  The result in many cases is that an employee can get the NLRB to issue a complaint asserting that the employee’s termination violates the NLRA, leaving the employer facing expensive and time-consuming litigation against an employee with free legal representation through the NLRB’s General Counsel office.

Given the current NLRB landscape, all employerseven those likely to never be unionizedshould review carefully their employee policies and handbooks to assess their compliance with current NLRB case law.  This, in turn, will allow companies to gauge their risk tolerance or make appropriate changes in the increasingly difficult effort to balance control of their workplace and compliance with the NLRA.  For further guidance and assistance, contact the author or your Seyfarth Shaw attorney.