The NLRB Continues To Focus On Employee Handbooks

Legal Alert

August 1, 2016

For more than a decade, the National Labor Relations Board (NLRB) has, with increasing frequency, found that employee handbooks infringe upon employees’ Section 7 rights. Section 7 of the National Labor Relations Act (NLRA) guarantees employees "the right to self-organization, to form, join, or assist labor organizations […] and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." These Section 7 rights apply to all employees and prospective employees, regardless of their union status or affiliation. Employees engage in Section 7 concerted activities when they act in concert with, or on behalf of, their fellow employees for their mutual aid or protection with regard to the terms and conditions of their employment. Simply maintaining an offending policy, regardless of how the policy is actually enforced, is sufficient for an employer to be in violation of the NLRA. The primary consideration is whether employees would reasonably construe the rule’s language to prohibit Section 7 activity.

Because the employer may violate the law simply by having the policy, the analysis often involves the General Counsel of the NLRB imagining hypothetical scenarios in which an employee may feel that protected activity is prohibited by an existing rule or policy. If the NLRB is convinced of the reasonableness of these hypotheticals, the NLRB will find the rule or policy to violate the NLRA. Arguments have been made that the NLRB often takes the “reasonableness” concept to illogical extremes.

In a recent decision, Casino Pauma, several policies were identified as violating the NLRA, including Casino Pauma’s handbook rule pertaining to personal business on company property and solicitation.

First, the rule regarding personal business provided in part that: “Team members are reminded they should only be on Casino Pauma property when conducting Casino Pauma business. […] Team members are to conduct only Casino Pauma business while at work. Team members may not conduct personal business or business for another employee during their scheduled working hours.” Acknowledging the clumsy drafting, Casino Pauma held that prohibiting “personal business” on company property and “while at work” could be reasonably read to prohibit an employee’s exercise of Section 7 rights in non-work areas and on non-work time.

The second offending policy stated that: “Any and all solicitation or distribution must cease immediately if the intended recipient expresses any discomfort or unreceptiveness whatsoever.” Casino Pauma, relying on the 2004 decision in Ryder Truck Rental, found that under Section 7, employees have the right to “engage in persistent union solicitation even when it annoys or disrupts the employees who are being solicited.”

Employers are encouraged to carefully draft employee handbooks and similar rules and policies. Once drafted, employers should stay abreast of new developments from the NLRB and scrutinize their existing policies.

If you have any questions regarding these issues raised in this client alert, please contact your labor and employment counsel at Smith, Gambrell & Russell, LLP.

This client alert is intended to inform clients and other interested parties about legal matters of current interest and is not intended as legal advice.