Bill Egan writes:
The NLRB has added to its rapidly expanding body of work addressing the permissible scope of workplace rules under National Labor Relations Act. In the related cases of T-Mobile USA, Inc. and Communications Workers of America, et al, and MetroPCS Communications, Inc. and Communications Workers of America, the Board struck down over a dozen workplace rules of T-Mobile USA and its affiliate, MetroPCS Communications, Inc., on the ground that the rules were overbroad and employees could construe the language in the rules as chilling their rights under Section 7 of the NLRA. Section 7 affords employees the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.
In its opinion, the Board reiterated its position that even if a work rule does not expressly restrict protected activities, it is nonetheless a violation of the NLRA if “employees would reasonably construe the language to prohibit Section 7 activity.” In reliance on that reasonable construction element, the Board found as ambiguous, and therefore overbroad under the NLRA, the following workplace rules:
- A requirement that employees “maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers, and management;”
- A prohibition against using company information or communication resources “in ways that could be considered disruptive, offensive, or harmful to morale;”
- A prohibition against using the employer’s information or communication resources “to advocate, discourage, or solicit for political causes or non-company-related outside organizations;”
- A prohibition against permitting “non-approved individuals access to information or information resources, or any information transmitted by, received from, printed from, or stored in these resources” without prior written approval of the employer;
- A prohibition against making detrimental comments about the company or its customers, products, services or employees;
- A prohibition against arguing with co-workers, subordinates, or supervisors;
- A prohibition against failing “to treat others with respect” and failing to demonstrate “appropriate teamwork,”
- A prohibition against making recordings in the workplace;
- The designation of the employee handbook as a confidential and proprietary document;
- The requirement that employees maintain the confidentiality of the names of employees involved in internal investigations;
- The non-exclusive imposition of a requirement that employees notify the employer if thea employee believes he or she was not properly paid wages, or was required to miss a meal or rest period (deemed invalid because it not did not also advise that employees may also seek outside recourse);
- The requirement to refer all media inquiries to the company without comment (deemed invalid because it did not exclude inquiries about wages and other terms and conditions of employment);
- The requirement that employees to sign a confidentiality agreement that classifies employee wage and salary information as confidential information not subjected to disclosure; and
- A prohibition against using or disclosing employee addresses, telephone numbers, and accessing such information without a business need to do so and without either the employer’s authorization or the employee’s consent.
The takeaway is that all employers must take particular care in their drafting of workplace rules, policies, and procedures, be they employee handbooks, policies and procedures manuals, or codes of conduct. Section 7 protections extend to all non-supervisory employees, not just those in a union or seeking union representation. Work rules must be drafted narrowly and in a way that does not chill employees’ Section 7 rights, whether expressly, impliedly or even arguably.
Bill Egan is a partner in the Labor & Employment Department, resident in Fox’s Minneapolis office.