NLRB: Employer’s Confidentiality and Media Policies Didn’t Violate Labor Law

 

October 17, 2019
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A specialty-food distributor's handbook policies that required employees to protect customer and vendor lists and not respond to media inquiries didn't violate federal labor law, according to the National Labor Relations Board (NLRB).

The first disputed policy required employees to protect confidential and proprietary information, including client and vendor lists. The second policy prohibited employees from responding to reporters on behalf of the company.

A labor union argued that these policies violated workers' right to engage in concerted activity—which includes contacting third parties and the media—under Section 7 of the National Labor Relations Act (NLRA).

The NLRB disagreed. The confidentiality rule didn't forbid workers from disclosing the names of customers or vendors to labor organizations, the board said. Rather, the rule only guarded customer and vendor lists, and a "reasonable employee" would not interpret the rule as interfering with Section 7 rights.

The company's media rule addressed only situations where the news media approached employees and only prohibited them from speaking on the employer's behalf. Employees have no right under the NLRA to speak on their employer's behalf, the board noted.

The Republican-led board criticized prior NLRB decisions, saying they "invalidated commonsense rules and requirements that most people would reasonably expect every employer to maintain."

We've rounded up articles and resources from SHRM Online and other trusted media outlets on handbook policies and the NLRA.

Balancing Test

The NLRB analyzed the employer's policies under a balancing test it developed in Boeing Company, 365 NLRB No. 154 (2017). In that decision, the board considered the following factors with regard to a "facially neutral" handbook policy (i.e., a policy that is not worded to intentionally interfere with workers' Section 7 rights):

  • The nature and extent of the potential impact on NLRA rights.
  • The employer's legitimate justifications for the rule.

The board outlined three categories of employment policies, rules and handbook provisions:

  • Category 1 includes lawful rules that either don't interfere with NLRA-protected rights or for which the possibly adverse impact on protected rights is outweighed by the employer's justifications for the rule.
  • Category 2 consists of rules that should be scrutinized on a case-by-case basis as to whether they would interfere with NLRA rights, and if so, whether there is a legitimate justification for the rules.
  • Category 3 covers unlawful rules that prohibit or limit NLRA-protected conduct and for which the adverse impact on workers' rights is not outweighed by the employer's justifications for the rules. An example would be a rule that prohibits employees from discussing their wages or benefits with one another.

In the Boeing decision, the board overruled a prior standard that placed limits on employer handbook policies that could be "reasonably construed" by workers to limit their right to engage in protected concerted activity.

(SHRM Online)

Further Clarification

In the most recent decision, the board further clarified that that the NLRB's general counsel has the initial burden to prove that a seemingly neutral rule would potentially interfere with workers' Section 7 rights, as interpreted by a "reasonable employee" who is aware of his or her legal rights but interprets work rules as they apply to the everyday reality of the job. The Boeing balancing test would be applied only if the general counsel meets this initial burden; otherwise, the inquiry stops there.

Although the NLRB could change course in the future, employers should continue turning to Boeing for guidance on whether the current board would approve their handbook policies. The board has recently issued employer-friendly decisions.

(The National Law Review)

More Freedom with Employee Handbooks

Employers can expect the NLRB to subject their employee handbooks to far less scrutiny than in the past. For instance, employee-handbook civility rules will generally be found valid. Lawful civility rules might state, for example:

  • Behavior that is rude, condescending or otherwise socially unacceptable is prohibited.
  • Disparaging the company's employees is prohibited.
  • Employees may not post any statements, photographs, video or audio that reasonably could be viewed as disparaging to workers.
  • Rules against defamation or misrepresentation are also generally allowed. Examples of such rules are:
  • Misrepresenting the company's products, services or employees is prohibited.
  • E-mail messages that are defamatory are prohibited.

Employees will generally understand that these types of rules do not apply to subjectively honest, protected, concerted speech, according to a memo.

(SHRM Online)

Unlawful Social Media Policies

Employers still must carefully craft handbook polices. The NLRB general counsel's office made a 2018 advice memo available on Aug. 15, in which it found that two of CVS Health's social media policies requiring employees to disclose certain personal information ran afoul of federal labor law.

(SHRM Online)

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