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LAWS THAT ‘POSSIBLY’ HARM WORKERS’ RIGHT TO ORGANIZE ARE OK: ACTUAL HARM NOW REQUIRED

QUESTION: I heard that the National Labor Relations Board has some new rules on what’s OK to put in an Employee Handbook. I am an employer; is this anything I should worry about?

ANSWER: Good question! At Gwinn Legal, we make an effort to ensure the information we provide in “Ask the Lawyer” is up-to-date; answering your question allows us to inform our readers of a major legal shift. The new rules favor employers by making it harder for workers to claim that handbook provisions on civility, insubordination, use of cameras, confidentiality, defamation and a slew of other issues violate their rights to concerted activity or the right to organize to form a union.

In a June 6, 2018 Memorandum, the Office of the General Counsel set out a new standard, based on the National Labor Relations Board’s December 14, 2017 decision in The Boeing Company, 365 NLRB N. 154. Under previous guidelines, a handbook rule violated the law if it could, theoretically burden workers’ rights to self-organize and “to engage in other concerted activities for the purpose of … mutual aid or protection” under Section 7 of the National Labor Relations Act (NLRA).

Now, a handbook policy will violate the NLRA only if it would impact Section 7 activity. This change upends previous agency interpretations on the issue.

The new Memorandum sets out a list of rules that are presumptively lawful: Rules that will not interfere with Section 7 rights when “reasonably interpreted” and rules with a strong “business justification” that outweighs a “potential adverse impact on protected rights.”

The following employee handbook policies, formerly suspect because of their potential to have a chilling effect on workers’ Section 7 rights to self-organize and discuss the “terms and conditions of employment,” are now presumptively lawful.

• Civility Rules, such as those that bar “rude, condescending or otherwise socially unacceptable behavior,” prohibit “negative or disparaging comments” about employees to other employees, customers, or visitors or that prohibit posting “video, photographs or audio that reasonably could be viewed as disparaging to employees.”
• Rules banning photography or prohibiting workers from recording “conversations, phone calls, images of company meetings,” or recording conversations they have with “co-workers, managers or third parties” are justified, among other reasons, by an employer’s security concerns, or need to protect confidential or proprietary information. (Note that a prohibition against the use of cell-phones may be unlawful where the cellphone is an employee’s main method of communication.)
• Rules against “insubordination, non-cooperation or on-the-job conduct that adversely affects operations” are justified as long as the rules do not specifically impact protected activities. If concerted activity is included among the prohibited conduct, the rule is subject to review.
• Rules that prohibit “disruptive behavior,” “creating a disturbance,” or “disorderly conduct” are also immune from challenge. The Memorandum notes that activities like picketing and striking, which are clearly examples of “disruptive behavior,” are engaged in because they are disruptive: “[E]mployees would not generally refrain from such activity merely because a rule bands disruptive conduct.” The rule is justified in the interest of preventing fighting, roughhousing, yelling, profanity, throwing things, verbal abuse or outright violence, the Memorandum states.
• Rules prohibiting the disclosure of confidential, proprietary or customer information that do not refer to employee or wage information are justified.
• Rules against defaming or misrepresenting the company, its products, services or employees, including the use of email to send messages that are defamatory, are justified.
• Rules against using employer logos or intellectual property are presumptively legal because they are unlikely to have any chilling effect on protected rights and employers have a strong interest in protecting their intellectual property.
• Rules requiring authorization to speak on behalf of the company.
• Rules banning “disloyalty, nepotism, or self-enrichment.”

Despite the leeway now allowed employers under the Memorandum, any rule that prohibits employees from discussing working conditions or terms of employment like salaries or benefits will still violate the NLRA. You should periodically review your employee handbook to make sure it complies not only with the NLRA, but with other relevant laws. An attorney could help you ensure the rules in your employee handbook pass legal muster.

The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinnlegal.com.

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ASK THE LAWYER
By: Daniel A. Gwinn, Esq.

Attorney and Counselor at Law
GWINN LEGAL PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
[email protected]
www.gwinnlegal.com