NLRB VALIDATES EMPLOYEE HANDBOOK RULE DESIGNED TO PROTECT PRIVACY AND WORKPLACE HARMONY

As we have discussed in several prior Employment Law Alerts, the National Labor Relations Board (NLRB) has in recent years focused upon closely scrutinizing employee handbooks to determine whether any of their provisions (usually unwittingly) would serve to violate the Section 7 right of employees to engage in concerted activities in the workplace. 

On April 29, 2016, the NLRB issued a new decision finding that various provisions contained in the employee handbooks of T-Mobile USA, Inc. and MetroPCS Communications, Inc. did, in fact, violate Section 7 of the National Labor Relations Act. To the naked eye, it would seem clear that the rules created by T-Mobile and MetroPCS were designed for the laudable purpose of protecting privacy and harmony in the workplace. Nevertheless, the NLRB struck down these provisions.

The NLRB scrutinized four provisions of these employee handbooks:

1. A restriction on providing non-approved individuals with access to information (or resources for information) without written approval. The NLRB held that this rule was overly broad and could be interpreted by employees to prohibit them from sharing/disclosing their own salaries or disciplinary information.

2. A “commitment to integrity” provision prohibiting arguing with co-workers, supervisors, or subordinates. Employees, the NLRB found, could interpret this provision to restrict them from discussing potentially contentious or controversial workplace issues. Labor matters, including organizing campaigns, typically involve contentious or controversial issues; therefore, this rule could be interpreted to prohibit employees from engaging in protected Section 7 activities.

3. A rule requiring employees to maintain a “positive work environment by communicating in a manner that is conducive to effective working relationships.” To most observers, this rule would appear to be fairly innocuous. Using the same reasoning as in Section (2) above, however, the NLRB also struck down this provision.

4. A rule prohibiting the recording of other people or confidential information. This rule was intended by the employer to prevent harassment and promote privacy interests. Nevertheless, the NLRB held that the rule was problematic because it did not differentiate between recordings that might be protected under Section 7 and those that are not.

How do the good intentions of the employer factor in when analyzing handbook provisions under Section 7? According to the NLRB, employer’s good intentions are largely irrelevant to this analysis.

So…what is the takeaway from this decision? First, it is clear that the NLRB is continuing its campaign to scrutinize employee handbooks and strike down provisions that might otherwise be deemed completely rational and reasonable. Employers should take the time to ensure that their rules are narrowly tailored so as to accomplish the purpose for which they were created, while not being so overly broad as to inadvertently restrict behavior which is otherwise protected by law.

Also, remember that the courts of appeals may have a very different interpretation of these rules from the current NLRB, and it is always possible that this ruling (or similar rulings) might be overturned if challenged. For now, however, the most important lesson that employers can take away from cases such as this is the need for close scrutiny of employee handbook rules, particularly those rules which deal with topics such as employee conduct, privacy, and confidentiality.

If you have questions about this Employment Law Alert or wish to discuss the impact of this decision upon your business, please do not hesitate to contact Maury Nicely at Evans Harrison Hackett PLLC, 423/648-7851 or mnicely@ehhlaw.com.