Wednesday, March 25, 2015

More From the NLRB General Counsel on Employer Policies and Rule

This week we have been reviewing the newly issued Guidance by NLRB General Counsel Richard F. Griffin, Jr. addressing employee handbook rules or policies that the agency has found to be lawful or unlawful  as they relate to an employee’s Section 7 rights. Section 7 refers to the section in the National Labor Relations Act that gguarantees employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection," as well as the right "to refrain from any or all such activities." While the National Labor Relations Act applies only to private sector employers and employees, the public sector labor acts in Illinois are modeled after the NLRA and the state labor boards, which enforces the state labor acts,  give great deference to the body of law developed by the National Labor Relations Board and the courts reviewing those decisions. Therefore, public sector employers are wise to consider actions by the NLRB when formulating their policies because the state labor boards will most certainly look to the NLRB precedent when addressing same or similar issues.

According to the General Counsel, the NLRB finds Section 7 violations in work rules or policies when 1) an employee reasonably believes that the rule or policy restricts their Section 7 rights; 2) the rule or policy was promulgated in response to union activity or other Section 7 rights; 3) the rule or policy is applied to restrict or deny an employee’s Section 7 rights.

This week we have so far reviewed five of the eight points in the General Counsel’s Guidance. Here are the remaining three:

1. Rules Restricting Photography and Recording

The Act protects the right of employees to take and use photographs or other recordings in the workplace if that activity is in furtherance of their Section 7 activity. In other words, an employer cannot prohibit an employee from taking pictures in the workplace for instance to document a condition that the employee believes is unsafe. The NLRB General Counsel cautions, as he does throughout the Guidance, that policies or rules on the subject that are overbroad are likely unlawful. Griffin gives some examples as follows:

  • Taking unauthorized photographs or videos on company property is strictly prohibited. (The NLRB found that an absolute prohibition on photographing or recording restricts an employee’s right to engage in concerted activity.
  • No employee may use any personal recording device, including but not limited to audio, video or digital for the purpose of recording any employee or employer operation. (The NLRB found that this prohibits recordings by employees in furtherance of their protected rights.)
  • Using a personal cell phone, making personal calls, viewing or sending texts during work hours is prohibited. (The NLRB surprisingly found that this policy was unlawful because employees could reasonably believe that breaks and meal time were work hours!)

On the other hand, policies that limit prohibitions to actual work time and/or to operations or information that is confidential or proprietary will be found to be lawful.

2. Rules or Policies That Restrict Employees From Leaving Work

The gist of the NLRB concern with policies that prohibit employees from leaving work is that they may restrict employees from engaging in lawful strikes or informational pickets. Thus, sweeping prohibitions such as these were found to be unlawful:

  • Failure to report to your scheduled shift for three consecutive days without prior authorization, or walking off the job during a scheduled shift is prohibited. (The NLRB found that this unlawfully restrained employees from participating in lawful job actions.

On the other hand, when the prohibition is not absolute, the NLRB may find the policy lawful, such as the following:

  • Entering or leaving the company property without permission may result in disciplinary action.

3. Rules or Policies on Conflicts of Interest

Finally, the General Counsel addressed the topic of lawful and unlawful rules prohibiting employee actions which are in conflict with the employer’s. And, again, the General Counsel cautioned against overbroad rules which may violate employees’ Section 7 rights. Obviously, an employee strike, informational picket and even unionizing campaign could be a conflict of interest with the employer, so a sweeping prohibition on conflicts of interest have been found unlawful by the NLRB.  Public employers may have legislative definitions of conflicts to which their policy could refer. Otherwise, the greater the specificity in the definition of conflict, the more likely the rule will be found to be lawful. The Guidance offers the following example of a lawful policy:

  • Do not give, offer or promise anything of value to any representative of any outside business where outside business is defined as any person, firm, corporation or government agency that sells or provides services to, purchases from or competes with the employer.

The General Counsel’s Guidance is an excellent reminder of the need to periodically review policies and rules not only to ensure compliance with current laws, but to ensure that they are not so overbroad as to violate an employee’s right to engage in protected concerted activity.  As the Guidance notes, sometimes the mere existence of an unlawful policy will result in a violation, even if it has not been applied unlawfully.