NLRB Invalidates Employee Handbooks and Work Rules that Aim to Create Workplace Harmony and Privacy

May 2, 2016 Advisory

In a decision on April 29, 2016, the National Labor Relations Board (NLRB) ruled that employers do not have the right to prohibit employees from arguing with each other or recording each other, or require them to communicate in a manner "conducive to effective working relationships." 

The employers, T-Mobile USA, Inc. and MetroPCS Communications, Inc., ran afoul of the National Labor Relations Act (NLRA) when they issued, promulgated, and maintained various company work rules and codes of conduct which would chill a worker’s Section 7 rights to engage in protected concerted activities for mutual aid or protection. 

Despite the good intentions of the employer in providing a professional environment aimed to avoid conflict, negativity, harassment and violations of privacy, the Board viewed these rules as stifling workers’ rights protected under the NLRA. 

The Board’s determination focused on the ambiguity, vagueness, and overbreadth of the rules and codes drafted by the employer. The Board determined that the employers violated the NLRA in four ways:

  1. Maintaining an overbroad prohibition on providing non-approved individuals access to information or information resources without written approval; 
  2. Maintaining a "Commitment to Integrity" provision prohibiting arguing with co-workers, subordinates or supervisors; 
  3. Requiring employees to maintain a "positive work environment by communicating in a manner that is conducive to effective working relationships"; and 
  4. Prohibiting workers from recording people or confidential information.

Analyzing these rules and codes of conduct under the standard of "whether employees would reasonably construe the…rules to prohibit Section 7 activity," the Board ruled that all four rules were so broadly drafted that an employee would reasonably construe these as violated Section 7 rights. 

The first rule prohibiting workers from providing information or access to information to non-approved individuals was held to violate the NLRA because it would reasonably be read by employees to prohibit them from sharing or disclosing their own salary or disciplinary information in print. 

The second rule and third rule were held to be ambiguous and vague due to their expectation that employees maintain a "positive work environment by communicating in a manner that is conducive to effective working relationships." Employees would reasonably construe these rules as restricting their communications regarding possibly contentious or controversial workplace matters. The Board highlights that situations arise, like labor disputes and union organizing efforts, which involve controversy, criticism, and argumentative discussion. As such, these rules violated the NLRA. 

The fourth rule’s prohibition on recordings was designed to prevent harassment and maintain employee privacy. However, the Board found this rule violated the NLRA because it did not differentiate between recordings that are protected under Section 7 and those that are not. The Board held that employees would read the rule as prohibiting all recordings, even those protected such as using recordings to document evidence of protected concerted activity. Stressing drafting issues, the Board determined that this rule needs to be more narrowly tailored to the interest that the employers had in mind, preventing harassment, by citing laws regarding workplace harassment or restricting the prohibition to unlawful recordings. 

What could this mean for you? 
As employers draft or revise their handbook policies, they should avoid the temptation to draft broad statements and instead draft provisions under the purview of whether an employee would reasonably construe the provision or otherwise rule that it limits their Section 7 rights. The Board’s decision is a reminder that, well-intentioned or not, work rules and policies must afford workers’ their protected rights to the disharmony of argumentative, contentious, and even negative work environments.

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