The NLRB has decided another case regarding employee handbooks. No news there. What new problems could the NLRB find with employee handbooks? To many employers, it seems the NLRB has beaten this one to death. What is new is the specific provisions, ones that you might never dream would be a problem are now on the NLRB’s radar screen. Increasingly it feels like there’s no point in having an employee handbook. Well, don’t throw out your employee handbook. Read on after the jump to find out what happened and what steps you might take to stay under the NLRB’s radar and keep your employee handbooks…
The case is Casino Pauma, 2016 BL 229670, NLRB ALJ, No. 21-CA-161832, 7/18/16. Casino Pauma, located on tribal land in California operates a gambling casino and some restaurants. The Casino and the NLRB are not strangers. As recently as last year, the NLRB found that it had violated the NLRA by interfering with union activity and implementing rules about distributing literature and wearing a union insignia in violation of the NLRA. (The citations for those cases are 362 N.L.R.B. No. 52, 202 LRRM 2108 (2015); 363 N.L.R.B. No. 60, 205 LRRM 1591 (2015) if you’re interested in the details). The casino workers are represented by the union known as Unite Here. The charges in this case focused on the following four rules:
A No-Personal Business Rule, which required that “Team members are to conduct only Casino Pauma business while at work.” and prohibited conducting “personal business or business for another employee during their scheduled working hours.” What’s wrong with requiring employees to be focused on work and not personal business while at work? The NLRB’s Administrative Law Judge (ALJ) said that the rule, as worded was “overbroad” because: employees are allowed under NLRA Section 7 engage in union solicitation on the employer’s premises during non-work time, and distribute union-related literature during non-work time in non-working hours. This rule as written, however, says that employees cannot engage in anything that is not casino business during work hours. That language violates the NLRA, “because it is not properly restricted to ‘work time’ and thus bans protected activity during non-work time, such as time on lunch, breaks and before and after work.” The good news is that it shouldn’t be too hard to steer clear of this problem. You can still have this type of rule, as long as you specify that employees are not to conduct such activities during actual work hours in work areas.
A Ban on Solicitation Activities Causing ‘Discomfort’: This rule required employees soliciting on behalf of the union to immediately cease and desist if the activity was disturbing to another employee. This too would seem reasonable. The ALJ however, said that NLRA does not allowed an employer to tell employees to refrain from such activity if an employee just because s/he finds it disturbing. The ALJ here relied on a previous NLRB ruling, Ryder Truck Rental, Inc., 341 N.L.R.B. 761, 175 LRRM 1179 (2004), which held that employees have a right to “engage in persistent union solicitation even when it annoys or disturbs the employees who are being solicited.” While this particular part of the ruling is, might be even more concerning than the ban on the “no-personal-business rule”, there is still some room for employers here — though arguably not a whole lot. Yes, employees can solicit others on behalf of a union. Yes they can do so persistently, even to the point of annoying their co-workers. However the opinion seems to imply that if that solicitation crosses the line (i.e. it turns into bullying, harassment or threats) the employer would seem to have a strong argument that the activity is no longer protected.
An Online-disclaimer Requirement: The casino required employees posting content about work issues to a blog, social media site or website to include an employer-approved disclaimer that the opinions being posted were the employee’s own and not those of the casino. What’s the problem here? The ALJ said that the rule was written so broadly that it included prohibitions of speech protected under NLRA Section 7, which allows employees to engage in concerted activity to discuss and designed to improve work conditions. This rule also included prohibitions against references to co-workers, guests, vendors or clients without their prior consent or posting photos “in conjunction with work-related postings”. What’s wrong with now? Here is what the ALJ said: “Such admonishments could reasonably be read by employees to restrict the free exercise of their Section 7 right to comment to fellow employees and others, including union representatives, about their work-related complaints concerning wages, hours and working conditions. ” Regarding the photo ban, the ALJ reasoned, “Modern technology has made the use of the photographic ability of the ubiquitous iPhone commonplace in today’s society. One can easily imagine an employee who observes unsafe conditions in the workplace taking a photo for use by a union, to obtain the support of fellow employees in an effort to resolve the unsafe working conditions, or even to report them to the appropriate government agencies. As long as this is done without significant interference with work, such activity is, and should be, protected. ”
Again, employers who wish to include similar prohibitions can do so, if they make sure that they are worded so that they do not lend themselves to being (mis)understood as prohibiting activity that is protected under the NLRA. Prohibitions against photos or postings may violate laws against harassment or discrimination or that they are done during work time or that divulge proprietary information (with an appropriate definition that might include without limitation customer information, pricing or sensitive personal information or similar information) are more likely to pass NLRB muster.
Rule requiring prior employer approval for solicitations “in support of any causes” unless “the General Manager has granted written approval in advance.” You might be able to see why, according to the NLRB this too is overbroad as written. It could be read to include solicitation on behalf of unions, which is protected under the NLRA. Here too, such a prohibition at least in theory, could be sufficiently tailored to prohibit selling products, or soliciting donations for charitable or political or religious causes.
So now what? In light of this case and, you might want to review your employee handbooks (yes, again) with the help of competent employment counsel, revising them so that they are tailored to your legitimate business interests, and not likely to be “reasonably construed” by employees as prohibiting activities related to union organizing, union solicitation or even discussion among employees about work conditions.
OK, we’ve been at this a while so, that’s all for now!
Disclaimer: Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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