STRATEGY REGARDING NLRB ATTACKS ON COMMON EMPLOYMENT POLICIES
The blows seem to keep coming from the National Labor Relations Board (NLRB) attacking common employer personnel policies. The NLRB's philosophy is that any policy that could be read by an employee to prohibit legitimate union or other concerted activities is unlawful because it "chills" such union or other concerted activities. Further, the NLRB does not appear to give weight to the use of "disclaimers" indicating that such policies do not apply to the union or other lawful employee concerted activities. Although such disclaimers are relevant, the NLRB suggests so many restrictions on them they appear almost useless. That is, the NLRB suggests that such disclaimers would have to closely follow the language that could be broadly construed, and go to some detail describing union and concerted employee activities would still be allowed, and be written in a place close to the potentially overbroad terminology.
About the only presumption helpful to employers in the current NLRB doctrine is the NLRB suggestion that the context in which the statement is made may validate the policy, and/or certain examples may be used to validate the policy. For example, a prohibition against "harassment" is more likely to be ok if placed in the context of employer equal employment and anti-sexual harassment policies, and a policy requiring "confidentiality" is more likely to be lawful if placed in the context of an employer's trade secrets or other proprietary information policy.
Further, certain specific rulings have come down recently that are particularly disturbing. One of them, Purple Communications, 361 NLRB No. 126, deals with employer email systems, and the other, Sodexo America, 358 NLRB No. 79, modified 361 NLRB No. 97, deals with so-called no-access policy for off-duty employees.
Let us take a current NLRB case, UPMC, 362 NLRB No. 191 (August 27, 2015), which illustrates some of these problems. Here, the employer had a policy limiting the use of its information technology resources (emails, etc.) for business uses, but had an exception of permitting de minimis personal use of the resources. The policy further prohibited electronic communications to be used for unauthorized solicitation or distribution which were defined to include, but not be limited to, solicitation for raffles, charity drives, sale of goods, proposing or procuring membership in any organization, or canvassing.
In spite of the fact that the employer, which was a patient-care hospital, had tried to set forth its policy on a non-discriminatory basis, the NLRB found such policies to be unlawful. The policies were deemed unlawful because under the NLRB Purple Communications ruling, employees are now considered by the NLRB majority to have a presumptive statutory right to use the employer's email system for Section 7 related communications during non-working time. It made no difference to the NLRB that especially in a healthcare setting, hospital employees might be distracted by union or other Section 7 related solicitation emails that arrive in their inbox while they are working.
Other aspects of the employer's electronic mail and messaging policy were also found to be overbroad and illegal, including language in the policy stating that electronic messaging systems may not be used "to promote illegal activity or used in any way that may be disruptive, offensive to others or harmful to morale. . . ." The Board majority found such broad language could be construed to apply to legitimate union or other protected concerted activity, and thus had a tendency to unlawfully "chill" such union or other protected activities. A dissenting opinion argued that employees would reasonably understand that the rule was designed to reach serious misconduct that they engage in while using the employer's email, not their union or other protected activity.
Other provisions in the employer's social media policy were found to be unlawful, including those prohibiting disparaging or misrepresenting the employer, and making false or misleading statements regarding the employer. Even the dissenting NLRB member found the latter policy to be overbroad and therefore unlawful, particularly since they were not limited to use of the employer's property, including its electronic communication system. The dissenting member noted that an employer policy could probably prohibit libel or slander in a policy, but here the statements were simply too broad.
Some of the distinctions drawn by the current NLRB majority are hard to understand. For example, the NLRB in its various General Counsel reports have found rules prohibiting being "disrespectful" of others to be unlawful, and also rules saying "do not send unwarranted, offensive or inappropriate emails" to be unlawful. On the other hand, the NLRB has approved rules prohibiting "threatening, intimidating, coercing or otherwise interfering with the job performance of fellow employees or visitors." Further, the NLRB has upheld rules prohibiting "malicious" defamation and rules prohibiting "knowingly" false statements, but they continue to find rules prohibiting employees from making "disparaging or defamatory" comments to be unlawful.
A new NLRB case discussing no-access policies to off-duty employees is also disturbing. While traditionally non-employees have no right of access to the employer's property, employees are allowed by long-standing NLRB rules limited access to the employer's property while off duty. Under the rule of law applied by the NLRB for a number of years, a non-access rule is valid if three conditions are met. The rule must: (1) offer limited access solely with respect to the interior of the employer's premises and other working areas; (2) be clearly disseminated to all employees; and (3) apply to off-duty employees seeking access to the facility for any purpose and not just to those engaging in union activity. However, even under these policies that have been applied for a number of years, it was generally thought that employers could allow off-duty employees access to the interior of the facility for employment-related business, such as picking up their vacation checks, etc. However, the recent ruling in Sodexo America, indicates that use of any such exceptions for employer-related business in the case of off-duty employees returning to the interior of the premises, renders the no-access policy unlawfully broad because such an exception provides management with unfettered discretion to decide access in a discriminatory manner.
These issues are important to industry. Employers like to know that their policies are lawful rather than be faced with almost an impossible burden writing or reviewing such policies. Employers have legitimate concerns about the use of the employer's electronic communications and other property that are inconsistent with legitimate business uses, as well as safety and other concerns about access to the interior of the premises by off-duty employees. What is a responsible employer to do in these circumstances?
General Comments and Suggestions on the Situation - One consideration of great importance is to know the consequences of overbroad rules. The first question is whether an employee can be lawfully disciplined for violating an overbroad rule. The answer is often "yes" provided the violation actually interferes with the employer's operations, and the employee is not otherwise engaged in protected conduct. However, employers found to be in violation can be ordered to rescind any unlawful rules, and to rescind and remedy any disciplinary action based on the rules except for the exception just noted. An unlawful rule can also be grounds for the NLRB to set aside a vote against union representation and direct a re-run election, giving the union a second chance to win.
Each employer, preferably under advice of counsel, will have to analyze these issues before planning appropriate policy reviews. In doing so, employers should consider the fact that prior to the current Obama Administration, the NLRB would previously have allowed most of the terminology that is currently considered overbroad. Second, it is likely that, if an administration is elected from a different political party, many of these interpretations will be reversed and these policies will again be deemed lawful. Further, some of these policies pronouncements by the NLRB may not be upheld in court. Finally, the company may view such policies as so important that it is simply willing to run the risk of the contrary NLRB interpretations.