Section 7 of the National Labor Relations Act provides employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” In recent years, the National Labor Relations Board (NLRB), responsible for enforcing the Act, has taken an expansive view of “concerted activities” and has been waging war on seemingly innocuous employee handbook provisions and workplace rules.
In recent high profile cases, the NLRB struck down rules at T-Mobile requiring employees to “communicate in a manner that is conducive to effective working relationships” and to inform a manager if they were not paid properly. In another case, the NLRB invalidated Quicken Loans’ prohibition on profane language in the workplace and in yet another case, struck down Chipotle’s policy prohibiting employees from improperly using the company’s name or trademarks.
Recently, the NLRB came after a long-standing Farrington Law client. The NLRB concluded that the following workplace rules were unlawful:
- Employees are prohibited from copying, taking, or removing from the workplace any of the company’s books, records, or customer lists;
- Employees are prohibited from using the company’s voicemail, email and computer network system for non-company business;
- Employees are prohibited from using the company’s information system in a way that may be disruptive or offensive to others, including anything that may be construed as harassment or disparagement of others; and
- Avoid using statements, photographs, video or audio on social media that disparage coworkers.
It is the NLRB’s strained position that these and other common handbook provisions limit employees’ Section 7 rights to engage in concerted activity. Although the NLRB has published some guidelines on handbook compliance, the agency refused to bless our client’s specific proposed revisions, explaining that approving revised handbook rules would prevent the agency from taking a contrary position in the future.
The NLRB’s attack on common-sense employment policies can put employers between a rock and a hard place. Thankfully, in most instances, existing policies can be tweaked to comply with the NLRB’s Section 7 guidelines without materially changing the workplace rule. In light of the NLRB’s campaign against handbooks, employers are well-advised to consult counsel and take a fresh look at employee handbooks and other workplace rules.