NLRB Archives - Page 10 of 10

NLRB Signals Intent To Scrutinize Facially Neutral Handbook Policies

The Acting General Counsel of the NLRB is apparently rummaging through handbooks and policy statements to charge nonunion employers with unfair labor practices for enacting seemingly innocuous rules that could conceivably be read as interfering with the right of employees to engage in protected concerted activity. And as can be seen from the Board’s recent opinion in Karl Knauz Motors, Inc., 358 NLRB No. 164 (2012), the current Board majority has apparently bought into that misguided theory.

Under existing Board law, employers violate Section 8(a)(1) of the Act by maintaining work rules or policies that “would reasonably” be construed by employees as prohibiting or chilling their right to discuss or object to the terms and conditions of their employment. In this case, the car dealership had a seemingly innocuous and facially neutral “Courtesy” Rule in its employee handbook requiring employees to be “courteous” and “polite” to customers, suppliers and co-workers:

(b) Courtesy: Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.

The rule would reasonably appear to require employees to refrain from being disrespectful and from using language which would reflect poorly on the Dealership when interacting with customers and suppliers, or with one another in the presence of customers and suppliers.

Although the rule was not applied to discipline or discharge any employee, the Acting General Counsel nevertheless charged the employer with an unfair labor practice for maintaining the rule, and the Board majority agreed. Citing its recent social media policy decision in Costco Wholesale Corp., the Board noted that there was no protected activity disclaimer in the handbook and held that the “Courtesy” Rule is unlawful based on the strained conclusion that the Dealership’s employees would reasonably assume that they had been disrespectful in violation of the rule if they objected to or criticized anything concerning their working conditions. The reliance on Costco would appear to be misplaced, however, as that case involved a rule prohibiting employees from posting disparaging comments about the employer on the Internet. In this case, the Board’s majority improperly reads the “Courtesy” Rule as if the sentence prohibiting disrespectful conduct and profanity was a stand-alone requirement as in Costco, ignoring completely the context in which that sentence is part of the overall expectation that employees be courteous to customers and one another in order to maintain the Dealership’s good reputation and image. Context matters, however, and in this context it appears the Board will find rules to be unlawful if they “could conceivably” be read as chilling protected rights, as it strains credulity to think that employees “would reasonably” read a rule addressed to courteous behavior towards customers as interfering with their right to object to working conditions. Because the Acting General Counsel will continue to prosecute nonunion employers for handbook policies that “could conceivably” be read as chilling protected activity, employers need to review and modify their policies to avoid facing unfair labor practice charges.

NLRB Announces its First Formal Ruling on the Legality of Social Media Policies

In line with the series of guidelines issued by the Acting General Counsel over the past year, the NLRB has announced its first formal ruling on social media policies, finding that the social media policy of Costco Wholesale Corp. is unlawful because it broadly prohibits online comments “that damage the Company, defame any individual or damage any person’s reputation, or violate the policies” in the employer’s handbook. 358 NLRB No. 106. The case represents the first ruling by the Board on the legality of social media policies, and follows the Acting General Counsel’s admonition that overbroad policy statements will be held unlawful.

The Board observed in its opinion that in the absence of a disclaimer notifying employees that the rule is not intended to restrict the right to engage in protected concerted activities, the broad prohibition on comments that might “damage the Company” is overbroad and unlawful because “employees would reasonably conclude that the rule requires them to refrain from engaging in” communications that are critical of the company or its supervisors despite the fact that the policy does not appear to address or prohibit critical comments about the company. In this respect, the opinion appears to reflect the Board’s approach that policy statements will be judged not by what they purport to prohibit, but by whether employees could reasonably construe them as restricting their right to communicate about terms and conditions of employment. The Board observed that context matters, however, suggesting that employers might avoid liability by inserting appropriate disclaimers in their social media policies or by tying the prohibition to specific examples of egregious conduct such as the use of profane language, abusive or unlawful statements, or comments reflecting sexual or racial harassment.

The Costco opinion highlights the fact that overbroad social media policy restrictions on negative comments will be found to be unlawful by the Board, and that imposing discipline for making such comments might expose employers to unfair labor practice charges – even for non-union workforces – and the potential for wrongful termination claims. As referenced above, some of this risk can be managed by avoiding using overly broad restrictions, by carefully wording your policy to specifically notify employees that their protected rights are not encompassed by the policy restrictions, and by including examples of prohibited activity to provide context to the restrictions imposed. As have the prior guideline memoranda from the Acting General Counsel, this ruling provides a reminder that all businesses should reevaluate both the language and impact of their internet/social media policies with an eye towards these potential areas of risk.

NLRB Chills At-Will Acknowledgements

Having warned employers about the legality of their social media policies under the National Labor Relations Act, NLRB Acting General Counsel Lafe Solomon has apparently turned his attention to at-will employment statements in employer handbooks and manuals. Employers of union and non-union workforces need to pay careful attention to this development.

Many employers use standard language in their handbooks and manuals in which their employees acknowledge that their employment is at-will; that the employer may terminate the employment relationship at any time, for any reason; and that the at-will employment relationship cannot be amended, altered or modified except by a writing signed by a senior member of management. The Acting General Counsel apparently believes that such at-will disclaimers may interfere with or chill the right of employees to engage in protected concerted activity.

In a case that did not receive extensive publicity, the General Counsel’s Office filed an unfair labor practice charge in February 2012 against Hyatt Hotels (NLRB v. Hyatt Hotels Corp., Case 28 CA-061114) in which it alleged that the at-will disclaimer in the company’s employee handbook violated Section 8(a)(1) of the Act to the extent it required employees to acknowledge that their at-will employment status could not be altered except by a writing signed by management. The charge appears to reflect the Acting General Counsel’s belief that such an acknowledgement will have a chilling effect on the Section 7 right of employees to engage in concerted activity for the purpose of organizing to alter their employment relationship with the employer by choosing union representation. The Hyatt case was settled before the issue was presented for a hearing. An Administrative Law Judge issued a similar ruling in a case decided in early February against the American Red Cross; the case was resolved when the Red Cross agreed to modify its at-will disclaimer before the issue could be presented to the Board for review. (NLRB v. Am. Red Cross, 2012 WL 311334, Feb 1, 2012).

This is an important initiative on the part of the Acting General Counsel. As we have seen in the social media context, in analyzing handbooks and policy manuals the Acting General Counsel will apply Section 7 broadly to find statements unlawful to the extent they could be interpreted in almost any fashion to chill employee rights to engage in protected concerted activity. Accordingly, employers may want to take proactive steps to avoid NLRB scrutiny by including a disclaimer in the at-will sections of their handbooks to the effect that the at-will acknowledgment does not, and is not intended to, undermine or interfere with the employee’s right to engage in protected concerted organizing activity under Section 7 of the Act.

How the “Ambush” Election Process Will Work: NLRB’s Acting General Counsel Issues Guidance on New Procedures

The talk of the employer community lately has been the National Labor Relations Board’s highly controversial final rule that severely and substantially modifies certain procedures in representation cases. The Board claimed that the final rule, approved December 22, 2011, was designed to reduce unnecessary litigation in representation cases and thereby enable the Board to better fulfill its duty to expeditiously resolve questions concerning representation.

NLRB Clarifies Standards to be Applied to Claims Involving Employee Use of Social Media

Acting General Counsel Lafe Solomon recently issued an NLRB Report clarifying the standards to be applied to claims involving employee use of social media. The Report, which summarized recent cases concerning employer policies restricting employee use of social media, like Facebook, as well as cases involving discipline imposed in response to postings on social media, makes clear that the Board will apply traditional analysis to issues concerning social media.

With respect to employer policies addressing the use of social media, the cases show that the Board’s focus will be on whether the policy in question “would reasonably tend to chill employees in the exercise of their Section 7 right” to engage in protected concerted activity. Employer policies will be found to be unlawfully overbroad to the extent they directly prohibit using social media to discuss terms and conditions of employment, or could “reasonably be construed by employees as prohibiting” such discussions. Policies that prohibit “disparaging” comments about the employer, “inappropriate” references to the work environment, and “unprofessional” or “disrespectful” postings are unlawfully overbroad because they could reasonably be construed by employees as prohibiting complaints about the work environment or discussions about the terms and conditions of employment. To pass NLRB muster, employers should focus their social media policies on the same type of activities that are prohibited in the workplace, such as harassment, threats and discrimination, and should also include a specific savings clause to make clear that the policy is not intended to limit or interfere with the right of employees to discuss wages, hours and the terms and conditions of employment.

With respect to cases involving discipline or the discharge of employees for comments posted on social media, the Board applies traditional analysis to determine whether the comments at issue are “protected” because they concern the terms and conditions of employment as opposed to unprotected personal griping, and whether the postings are “concerted” because they seek or result in co-worker comments. The cases cited in the Report show that postings about personal gripes at work or disparaging comments about the manner in which the employer conducts its business will not be protected, whereas comments addressed to working conditions, including the actions of supervisors and the terms and conditions of employment, are protected. The cases also show that the Board will engage in a traditional analysis to determine whether or not a posting is “concerted” by looking at such factors as the intent or purpose of the posting (personal rant/complaint or attempt to engage other employees) and the response to the posting (whether or not co-workers participated in an on-line discussion). An employer’s reaction to postings will also be subject to traditional “surveillance” analysis in which the Board will look at the manner in which the employer learned about the social media postings at issue; that is, whether it unlawfully obtained information about the postings surreptitiously, or lawfully learned about them because a manager or supervisor is a “friend” invited to read the postings. All of these factors must be considered in connection with a determination to discharge an employee based on social media activity.