Tuesday, May 3, 2016

Employer Policy Requiring Professional Behavior, Cooperation, and a Positive Work Environment Found Unlawful by NLRB

Employers should be able to expect employees to behave professionally, cooperate with one another, and maintain a positive working environment.  In its continuing attack on employer policies, however, the National Labor Relations Board (NLRB) recently found that an employer's Workplace Conduct policy requiring those behaviors was unlawful. See T-Mobile USA, Inc., 363 NLRB No. 171 (April 29, 2016). 

The policy at issue read as follows:

     [Employer] expects all employees to behave in a professional manner that promotes efficiency, productivity, and cooperation.  Employees are expected to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers, and management.
 
Disagreeing with an Administrative Law Judge's conclusion that the policy was lawful, and with the employer's argument that the policy reflected business-related objectives, the NLRB found that the policy was subjective, and that employees would reasonably construe the rule to restrict potentially controversial or contentious communications and discussions, including those protected by Section 7 of the National Labor Relations Act.
 
In the same opinion, the NLRB also found the employer's policy prohibiting recording devices to prevent harassment, maintain individual privacy, encourage open communication, and to protect confidential information was overly broad and unlawful. 
 
This opinion underscores the need for employers to routinely review their handbook policies to ensure compliance with the NLRB's expanding list of prohibited rules.