This post is the fifth in a series providing guidance on federal rules regarding permissible and impermissible employer handbook policies and rules. See Guidance Regarding Confidentiality Rules Here, Employee Conduct Rules, Rules Related to Company Logos, Copyright, and Trademark and Rules Restricting Photography and Recording. While the recent guidance was issued by the National Labor Relations Board (NLRB), (found here) this guidance is applicable to both unionized and non-unionized employers. The National Labor Relations Act (NLRA) restricts all employers from issuing policies or rules – even if well-intentioned – that inhibit employees from engaging in activities protected by the act, such as discussing wages, criticizing management, publicly communicating about working conditions and discussing unionization.
Restrictions on Leaving Work: Language to Avoid
Although the NLRB acknowledges that employers have a legitimate interest in keeping employees from leaving their posts without warning, they are also adamant that one of employees’ most fundamental rights under Section 7 of the NLRA is the right to go on strike. Accordingly, it is important to make sure that any employer policies restricting employees’ ability to leave work cannot be reasonably read to prohibit walkouts or protected strike activity. While context always matters, the NLRB provides a few clear guidelines to keep in mind when reviewing or drafting policies restricting employees’ ability to leave work.
• DO NOT use words such as “strike” or “walkout” when describing prohibited activity.
• DO NOT prohibit “work stoppages” or “disruptions.”
• DO NOT impose a broad ban on employees entering the employer’s property without permission. This could be interpreted as denying off-duty employees access to outside non-working areas, which is often interpreted as a violation of Section 7.
Permissible Policies Placing Restrictions on Leaving Work
Obviously, employers do have the ability to keep their employees from abandoning their posts for reasons unrelated to protected concerted activity. It appears that it is acceptable to have a relatively broad policy, as long as it avoids the specific language mentioned above. The NLRB has provided two examples of policies that restrict employees’ ability to leave work without infringing on their Section 7 rights:
• “Leaving Company property without permission may result in discharge.”
• Policy prohibiting employees from “[l]eaving Company premises during working shift without the permission of management.”
As always, it is important to remember that policies that do not strictly adhere to these rules can be found to be permissible under the right circumstances. For example, the NLRB found that a broad “no walkout without permission” rule was reasonably read to ensure that patients at a dementia facility were not left without adequate care (rather than as a complete ban on strikes) when taken in context. See Wilshire at Lakewood, 343 NRLB 141, 144 (2004), vacated in part, 345 NLRB 1050 (2005), enforcement denied on other grounds, Jochims v. NLRB, 480 F.3d 1161 (D.C. Cir. 2007). Accordingly, always be mindful of the particular circumstances of the employer in question when crafting policies of this nature.