The NLRB Invalidates More Employee Handbook Policies

Posted by Attorney David McClurg in Labor Relations / Comments

Section 7 of the National Labor Relations Act grants employees the right to engage in “concerted activity" for the purpose of “mutual aid and protection." Section 8 of the Act makes it unlawful for an employer to interfere with, restrain or coerce employees in the exercise of those rights. Over the past several years, the National Labor Relations Board has relied on these provisions to invalidate a number of common employment policies on the grounds that they allegedly “chill" employees' rights to engage in “concerted activities" protected by the Act.

A National Labor Relations Board (NLRB) judge entered the fray recently, and ordered several Verizon Wireless stores to strike ten different policies from their employee handbooks – finding them so overbroad that they could be read to chill employees' rights to engage in “protected concerted activity." Among those stricken were policies:

1. barring employees from using company resources, such as emails, fax machines and computers, to solicit or distribute information;

2. prohibiting employees from discussing Verizon Wireless with outside organizations or associations;

3. blocking employees from using company systems to direct information to employees inside the company on behalf of an outside organization;

4. prohibiting employees from disparaging company products, services, or employees;

5. requiring workers to report their co-workers' violations of handbook rules;

6. requiring that employees comply with the company's code of conduct as a condition of continued employment – since that code could be changed without notice to employees;

7. prohibiting employees from disclosing other employees' records (other than social security numbers, identification numbers, passwords, bank account information, and medical information which the judge said could be protected from disclosure)

8. allowing Verizon to monitor and search employees' personal property, including vehicles;

9. barring employee's from recording at work without management authorization; and

10. blocking current and former employees from disclosing nonpublic company financial information without permission.

This provides a good sampling of the types of policies that the NLRB and its Obama appointees have found to be unlawful. However, employers may see some relaxation of the Board's position once it eventually has its full complement of Republican members. Last month, the new NLRB Acting Chairman, Philip Miscimarra, authored a very interesting dissent in another Verizon case where the majority invalidated several policies including (1) an identity theft policy that prohibited employees from accessing or disclosing employees' personal information to persons outside of the company; (2) a conflicts of interest policy that cautioned employees from making decisions regarding Verizon products if they serve in outside non-profit organizations; and (3) a policy that limits the use of company resources to solicit or distribute for non-work related purposes. In all three situations, the Board concluded that the policies could be read by Verizon employees to prohibit them from participating in union organizing activities.

In his dissent, Chair Miscimarra argued for rejection of the standard that judges handbook policies based on the possibility that an employee might misconstrue their purpose and think that they might bar “concerted activity." Instead, he advocated for a standard that would include review of the legitimate purposes behind the policy, and determination of whether it has ever actually been used by the employer to interfere with NLRA-protected rights. Using this alternative test, he concluded that most of the challenged policies did not violate the NLRA.

If this standard is adopted now that President Trump has filled the two remaining vacancies on the 5-member Board, it could signal the end to these broad challenges to employment policies that do not legitimately appear to interfere with employees' rights to engage in “concerted protected activities," and which have never been interpreted or used by the employer for that purpose. This would allow employers to avoid frequent handbook revisions intended to keep up with the latest NLRB pronouncements.

If you have questions about this or other labor & employment questions, please feel free to contact Dave McClurg at (414) 223-6956 or dmcclurg@petriepettit.com.