Wednesday, May 21, 2014

The NLRB Continues its Assault on Reasonable Handbook Policies

In a decision issued on Monday, an Administrative Law Judge (ALJ) ruled that a number of an employer's handbook policies violated Section 7 of the National Labor Relations Act (the "Act").  See Hoot Winc, LLC, NLRB ALJ, No. 31-CA, 104872 (May 19, 2014).

The underlying dispute involved the termination of employees who were allegedly involved in, among other things, a dispute about a bikini contest.  In a lengthy ruling in favor of the employee, the ALJ found that a number of the employer's policies violated the Act, including those prohibiting:

  • employees from discussing tips with other employees or guests.
  • insubordination to a manager or lack of respect or cooperation with fellow employees or guests.
  • disrespect to a guest, including profanity or negative comments or actions.
  • the unauthorized dispersal of sensitive company operating materials.
  • actions or activities the complaints believes represent a threat to the smooth operation, goodwill, or profitability of the business.
  • off-duty conduct which negatively affects the employee's ability to perform his or her job.
  • discussion involving the company's business or legal affairs with anyone outside the company.
Incredibly, the ALJ also found that the employer's social media policy, which required employees to be respectful to the company, other employees, customers, partners, and competitors, also violated the Act.  According to the ALJ, these policies, which a large number of employers have, were overly broad and could "chill" union activity.

The takeaway here is that the NLRB continues its efforts to erode an employer's right to effectively manage its workforce by striking down reasonable policies.  Employers must be vigilant about keeping pace with these decisions.