Business Counselor April 17, 2014 David R. Fernstrum, Kimberly M. Large

Update: Union or Non-Union, Commonplace Employer Policies are Still Under Attack by the NLRB

We previously wrote* about the National Labor Relations Board (“NLRB”)** penalizing employers for using work rules to regulate their employees’ work-related comments on social media.

Recent events suggest that things are going from bad to worse, especially for non-union employers. The NLRB continues to broaden its intense scrutiny of such employers’ policies and to decide that many commonplace work rules are illegal. In the process, the NLRB has ordered employers to reinstate employees who were discharged for violating the “unlawful” rules, to give the discharged employees back pay, to eliminate their “unlawful” rules, to post written promises they will not adopt such rules in the future, and to post notices advising employees of their rights to join labor unions.

Some of the NLRB’s decisions may surprise you. Here are examples of some policies or handbook language that the NLRB and its administrative law judges have recently found unlawful:

  • Rules of employee conduct: The NLRB has found it unlawful for employer rules to require employees to:
    • “represent [the Company] in the community in a positive and professional manner in every opportunity.”
    • “not engage in or listen to negativity or gossip”
    • restrict use of Company electronic media to “business purposes only” and allow for limited personal use only with managerial consent
    • refrain from “unauthorized posting, distribution, removal or alteration of any material on Company property”
    • refrain from discussing “private matters of members and other employees . . . such as, but not limited to, sick calls, leaves of absence, FMLA call-outs, ADA accommodations, workers’ compensation injuries, personal health information, etc.”
    • refrain from participating “in outside activities that are detrimental to the company’s image or reputation, or where a conflict of interest exists”
      refrain from “conducting oneself during nonworking hours in such a manner that the conduct would be detrimental to the interest or reputation of the Company”
    • refrain from “[d]iscourteous or inappropriate attitude or behavior to passengers, other employees, or members of the public
  • Non-disparagement policies and policies regarding contact with the media: It was unlawful to prohibit “[m]aking disparaging comments about the company through any media, including online blogs, other electronic media or through the media.”
  • Confidentiality and social media policies: It was unlawful to have a social media policy that applied to all social networking communications and restricted use of the Employer’s confidential information such that “in external social networking situations, employees should generally avoid identifying themselves as the Employer’s employees, unless. . . discussing terms and conditions of employment in an appropriate manner.”
  • Arbitration clauses: Arbitration clauses will likewise be deemed unlawful if they do not contain particular exceptions required by the NLRB (e.g., if they do not clearly state that employees are not obligated to arbitrate disputes about alleged unfair labor practices).

The NLRB has found common provisions in employment agreements, and in severance agreements, to be unlawful. For instance, the following contract language was unlawful:

  • Nondisparagement clause: “You agree that you will not (nor will you cause or cooperate with others to) publicly criticize, ridicule, disparage or defame the Company or its products, services, policies, directors, officers, shareholders, or employees, with or through any written or oral statement or image (including, but not limited to, any statements made via websites, blogs, postings to the internet, or emails and whether or not they are made anonymously or through the use of the pseudonym). . .”
  • Confidentiality clause: You agree to refrain from disclosing “(1) non-public information relating to or regarding. . . personnel” and “(2) personnel information including, but not limited to, all personnel lists, rosters, personal information of co-workers” and “handbooks, personnel files, personnel information such as home phone numbers, cell phone numbers, addresses and email addresses.”
  • At-will employment clause: “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.”
    Prudent employers must take a close look at all policies, rules and employment agreements in light of the NLRB’s recent decisions. All such documents should be updated by removing “illegal” language and, if possible, replacing it with language the NLRB finds acceptable.

It is recommended that employers consult with counsel about their employment policies regarding social media as well as any surveillance implications. Counsel can assist with language that is only as broad as necessary and, if appropriate, provides examples of permissible and prohibited acts.

*See the former article Update: Employers Are Limited In Their Ability To Regulate Employees’ Speech Via Social Media.
**The NLRB is an independent federal agency that was created to enforce the National Labor Relations Act. Contrary to popular assumptions, the National Labor Relations Act applies to nonunion and union employers.

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