The NLRB Continues to Haunt Unsuspecting Companies
Like the nod to Halloween there? Oh, you didn’t notice? You see, we used “haunt.” You know, like ghosts do…. Sigh.
In a previous post we told you how the NLRB was not just for unions anymore; it’s rapidly becoming a watchdog powerhouse striking down anything it perceives as violating an employee’s right to engage in protected concerted activity. According to the National Labor Relations Act, employees must have the right to engage in protected “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
In our last post on this, we mentioned how the NLRB was cracking down on social media policies, internal investigations, and at-will employment provisions in employee handbooks. Based on two recent Board Decisions, employers must also be careful about telling employees how to act.
On September 7, 2012, the NLRB issued a Decision that invalidated Costco’s electronic posting rule. The rule, contained in Costco’s employee handbook, prohibited employees from making statements “that damage the Company, defame any individual or damage any person’s reputation.” The NLRB found this language to be overbroad, concluding that it “would reasonably chill employees in the exercise of their Section 7 rights,” as it could be construed as prohibiting “Section 7 activity.”
Based on the Decision, it appears that if Costco had provided specific examples of what it wanted to prohibit, such as “abusive, harassing, unlawful, profane, offensive, threatening, intimidating,” etc., then it may have survived. The Board further indicated that, at the very least, Costco could have explicitly exempted protected concerted activity from the rule, suggesting that a savings clause or disclaimer would have helped. The problem was that Costco left it open to interpretation, which the NLRB continues to prove is a big no-no.
On September 28, 2012, the NLRB issued a Decision in the same vein, this time against Karl Knauz Motors in New York. In the Decision, the Board found handbook provisions regarding “Courtesy,” “Unauthorized Interviews,” and “Outside Inquiries Concerning Employees” violative of the NLRA, as they could chill an employee’s ability to engage in protected concerted activity. While the company did not really challenge these findings as related to interviews and outside inquiries (as written, they were too broad), it took issue with the Board’s finding as it related to the “courtesy” provision.
The “Courtesy” provision stated: “Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.”
As was the case with the Decision in Costco, the Board indicated that if protected concerted activity had been exempted from this, the provision may have survived. Specifically, there could have been language excluding objections or criticisms of working conditions. However, again the provisions as written were general enough to be open to interpretation, leading to problems.
So what’s an employer to do? Have your handbook reviewed immediately. If there is one thing to be learned from all of the NLRB’s recent decisions, it’s that handbooks are fertile ground for labor challenges and any provisions that are not carefully drafted are fair game. This is particularly important if you have not had your handbook revised for more than one year! Best practice is to have your handbook reviewed yearly for changes with the law, but with changes in the law and in interpretation by the NLRB, now more than ever it’s important to be proactive and have your handbook reviewed.