Are the rules in your employee handbook clear? Do your employees understand what they can and cannot do? A recent case showed that having unclear workplace rules may be illegal because they stifle employees’ protected concerted activities.
In the case, the NLRB found that a number of rules in T-Mobile’s employee handbook were ambiguous, overly broad, and could potentially discourage employees from unionizing or engaging in protected concerted activity. The National Labor Relations Act (NLRA) makes it illegal for employers to discourage employees from unionizing or prohibiting employees from discussing unionization with other employees. Even rules which might discourage employees from discussing unionization or just terms and conditions of employment violate the NLRA.
One of the rules that the NLRB found to be illegal stated that employees should “maintain a positive work environment by communicating in a manner conducive to effective working relationships.” The NLRB found that this rule might discourage employees from discussing unionization with other employees. It also found that this rule might violate an employee’s right to engage in “criticism of the employer (and co-workers), arguments and less-than-‘positive’ statements about terms and conditions of employment.”
The NLRB also found T-Mobile’s policy prohibiting the use of audio or video recording in the workplace without prior permission to be illegal, as this could prevent employees from documenting unsafe workplace conditions or picketing, which the NLRA gives employees the right to do. The NLRB made a similar ruling a few months ago, finding Whole Foods’s policy of prohibiting workplace recording to be illegal.
Other rules the NLRB found to be illegal included one which prohibited the disclosure of employee wage and salary information with other employees, a rule prohibiting employees from arguing with one another or failing to treat other employees with respect, and a rule requiring all media inquiries to be referred to the employer without comment.
The NLRB emphasized that these rules could have been written in a way that did not violate the NLRA if they were narrower and more precise. The NLRB warned employers against drafting ambiguous, vague, and overly broad workplace rules.
This case, as well as others that we have discussed, shows that the NLRB has adopted a pro-employee, pro-union stance. Rules in employee handbooks that were legal a decade ago may no longer be. Employers who have not had a review of their employee handbook recently should consider contacting an experienced attorney to do so.
