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NLRB Takes Aim (Again) at Non-Unionized Employee Handbook

5.22.2017

This month, NLRB Judge Robert A. Ringler struck down numerous policies (17 in total) in a non-unionized employee handbook, concluding that those policies all violated Sections 7 and/or 8 of the National Labor Relations Act. We have written about similar NLRB issues here, here, and here. However, several of the policies voided as overly-broad in this NLRB decision are worthy of further discussion.

Section 7 of the NLRA provides employees with “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” As particularly relevant to this case, Judge Ringler noted that the company’s conflicts of interest policy, which required employees to avoid activities inconsistent with the company’s best interests, could inadvertently prevent employees from engaging in §7 activities. Thus, Judge Ringler struck down that policy as unlawful.

Judge Ringler similarly voided the company’s confidentiality policy, which generally banned employees from disclosing private company information, explaining that this broad provision could prevent “employees from engaging in their §7 right to discuss wages or other workplace issues amongst themselves or with a union.” Likewise, Judge Ringler found unlawful the company’s property, telecommunications, and information technology policies, which essentially prevented employees from using the company’s facilities and equipment (including telephones, email, and other communication systems) during non-working time for any non-business purpose. According to Judge Ringler, such an expansive attempt to thwart non-company use of company property contravenes the NLRA by preventing employees from engaging in §7 conduct outside of working hours on the company’s premises.

The company’s tape recording policy, which prohibited all unauthorized workplace recordings, fared no better. There, Judge Ringler stressed that such a broadly worded provision could prevent employees from engaging in a variety of §7 activities, including preserving evidence for future use in employment-related actions, documenting unsafe workplace conditions, and recording discussions about terms of employment. Similarly, Judge Ringler held that the company’s social media policy, requiring that employees receive prior authorization before posting about the company on social media, qualified as an over-broadly limitation on the employees’ §7 rights to engage in collective activities online.

In sum, this case serves as a fresh reminder that prudent employers must routinely review employee handbooks for compliance with changes in the law. Significantly, even companies without unionized employees can run afoul of the NLRA by adopting overly-broad policies that hinder employee engagement in §7 activities.

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