Since at least 2012, we have written about the NLRB’s focus on employer handbook policies that it considers to be unlawfully overbroad. You can read about these past developments here. Overbroad policies can have a chilling effect on employees’ right to engage in concerted activities for their mutual aid and protection. The NLRB’s pronouncements apply to private employers whether or not a union is involved. In its latest case, the NLRB finds the language in several common handbook policies to unlawfully interfere with employee rights and ordered the employer to eliminate the offending language.
NLRB Orders the Employer to Change Its Rules
The NLRB specifically considered five separate policies, and because certain language in each policy was considered to be too broad, the employer was ordered to remove the offending language. Here is a summary of the problematic policy language the NLRB found to be unlawful.
Social Media Code of Conduct
Language that prohibits employees from posting incomplete, confidential or inaccurate information and making disparaging, false or misleading statements.
Solicitation Policy
Language that prohibits employee solicitation during nonworking time in working areas if the solicitation would be within visual or hearing range of customers.
Confidential Information
Language that unlawfully limits the use of the employer’s name.
Ethical Communications
Language that directs employees to avoid exaggeration, guesswork and derogatory characterizations of people and their motives.
Political/Religious Activity and Contributions
Language that prohibits employees from discussing politics and from using the employer’s name for political purposes.
Lessons for Private Employers
Whether or not a union is involved, the NLRB will aggressively challenge any employer policy that could reasonably be interpreted to chill employees in the exercise of their protected rights under the National Labor Relations Act. For employers, the challenge will always be to anticipate precisely what language may be too broad. Some employers have even gone as far as to add a disclaimer to policies in hopes of narrowing the scope of the rules. Indeed, in this case, the employer used the following language at the end of its Social Media Code of Conduct policy: “This code does not restrict any activity that is protected or restricted by the National Labor Relations Act, whistleblower laws, or other privacy rights.” However, this effort was to no avail as the NLRB still found the policy to be unlawful. Careful and regular review of current policies in light of the NLRB’s rulings is always in order.
Reference: Chipotle Services LLC d/b/a Chipotle Mexican Grill, (NLRB August 18, 2016).
If you have any questions, please contact Steve Lyman at slyman@wp.hallrender.com or your regular Hall Render attorney.
