By Donna Glover
While employers wait to see if the Trump Administration will produce a kinder, gentler National Labor Relations Board (NLRB), the NLRB is still in the business of punishing employers for workplace policies that ostensibly violate employees’ rights under the National Labor Relations Act (NLRA).
As a quick refresher, Section 7 of the NLRA generally provides that covered employees have the right to unionize, bargain collectively and to engage in other protected concerted activities for “the purpose of collective bargaining or other mutual aid or protection.” As such, employers may not interfere with, restrain or coerce employees’ exercise of their Section 7 rights. The NLRB has repeatedly held that any employer policy or work rule would be unlawful if that policy restricts employees’ protected activities, if employees could reasonably construe the policy or rule language to prohibit protected activity, if the policy or rule was created in response to union activity, or the employer applied the policy or rule in an effort to restrict employees’ protected activity.
In BCG Partners, Inc. 28-CA-178893 (May 10, 2017), Administrative Law Judge Robert Ringler found that 17, yes 17, of the company’s policies were unlawful. In brief, a few examples of the violations ALJ Ringer found are as follows:
- Responsive Action Policy – BCG’s policy allowing for discipline against employees who provide false information during an investigation was unlawful because it was overly broad. Relying on NLRB precedent, the ALJ ruled that the policy would have been lawful if it allowed for discipline related to “maliciously false” statements, not just false statements.
- Conflict of Interest Policy – In part, the BCG’s policy provided that: “We expect our employees to … always avoid activities … inconsistent with the best interests of the Company and our clients. Business dealings that reasonably appear to create a conflict between the interests of an employee … and the Company or a client are unacceptable. The Company recognizes the right of employees … to engage in activities outside of their employment that are unrelated to our businesses. However, the employee … must disclose any possible conflicts ….” The ALJ determined that the policy, which banned conflicts of interest and required disclosure of same, was unlawful because it could reasonably be construed to bar Section 7 activities conflicting with BCG’s interests – like union activity.
- Outside Employment and Business Activities Policy – The ALJ applied the same reasoning as it applied to the Conflict of Interest Policy discussed above. This Policy mandated that employees obtain approval to engage in any outside work activities that might present a conflict of interest.
- Reference Inquiries Policy – The Company’s policy requiring information requests to be forwarded to Human Resources was unlawful because it might be construed to ban employees from engaging in their Section 7 rights to discuss wages or other workplace issues amongst themselves or with a union.
- Confidentiality Policy – The Company’s policy allowing for disciplinary action up to and including termination of employment against employees who disclose confidential company information was unlawful because employees could interpret the policy as restricting employees’ ability to engage in Section 7 protected activity, the same reasoning applied to the Company’s Reference Inquiries Policy. Notably, “confidential company information” was NOT defined and narrowly tailored, which no doubt caused this policy to be unlawful.
- Company Property Policy – The employer’s policy banning non-work-related use of the Company’s facilities and equipment, which provided that, “Offices, cubicles, desks, computers, file cabinets, lockers, and vehicles are Company property and must be maintained according to Company rules and regulations. All Company property must be used solely for the Company’s benefit 10 and business purposes, and not for the employee’s … personal benefit (or the benefit of any other person or entity). The Company’s property includes its …premises, equipment … and supplies, as well as proprietary information and intellectual property (e.g., … non-public information, … customer, vendor and employee lists, confidential information and materials) ….” was an unlawful ban on solicitation and other protected activity under NLRB precedent. The same was true for the Company’s Use of Information Technology Policy and its Telecommunications Usage Policy – both found to be unlawful for the same reason.
- Tape Recording Policy – BCG’s Policy prohibiting employee’s from recording conversations without prior approval was found unlawful because it infringed upon employees’ rights to engage in protected activity. The ALJ opined, “This policy, which prohibits unauthorized workplace recordings, unlawfully and over-broadly encompasses recordings made for one’s own mutual aid and protection (i.e., it even covers recordings where the company may lack an overriding interest in its prohibition).”
- Respectful Workplace Policy – The Company’s policy seeking courtesy and respect, and admonishing employees to avoid fights and offensive language “essentially bar[red] any disrespectful workplace commentary, [was] unlawful, inasmuch as employees could reasonably construe this rule to ban statements of criticism toward their employer, which are generally protected.”
- Social Media Policy – The Company’s policy requiring employees to obtain consent before posting about the Company on social media was overbroad under the NLRB prior decisions.
Compass Point: So, the NLRB is still in business, and employers should take heed. The BCG Partners’ decision, in which 17 policies were attacked, is a stark reminder to employers to comb through employee handbooks and policies for language that may violate employees’ rights to engage in protected, concerted activity under the NLRA.