Thursday, July 21, 2016

NLRB Continues Assault on Employer Handbook Policies

In an opinion issued last week, the National Labor Relations Board once again found unlawful a number of employer handbook policies on the grounds that such policies could have a chilling effect on Section 7 rights.  CY-Fair Volunteer Fire Department and Robert Berleth, Case 16-CA-107721 (NLRB July 15, 2016).   You can find the case at:

Handbook policies the Board found unlawful in the employer fire department’s handbook included the following:

1.         Policies restricting employees from discussing or disclosing personal information of other employees.
     In the “Overview” of the handbook, the employer advised employees that disclosing or discussing the personal information of other employees is grounds for disciplinary action.
        Under its “Essential Behavioral Expectations” policy, the employer advised employees that they were expected to maintain the “confidentiality of business knowledge and member/employee information.”  

        In the “Blogging” policy, the employer prohibited employees from posting or discussing information about the employer’s “confidential and/or proprietary information,” and prohibited employees from using confidential and/or proprietary information.   

        In the “Proprietary Information/Confidentiality” policy, the employer cautioned that, “Information gathered in conversations, emails and meetings is confidential and proprietary, and may not be discussed with anyone outside the Department.”   

        Under the “Employee Records and Privacy” policy, the employer advised employees that, “Inappropriate disclosure and/or misuse of other employees personal information will result in disciplinary action, up to and including termination of employment.”   

        In the “Guidelines,” the policy advised employees not to “reference or site [sic] Department members, employees or vendors without their express consent.”
2.         Policies prohibiting the posting of insulting or damaging information.
        In its “Blogging” policy, the employer expressly prohibited “the use of embarrassing, insulting, demeaning or damaging info about the Employer, its products, customers or employees.”

        In its “Social Media” policy, the employer prohibited certain activities that have the effect of “harming the goodwill and reputation [of the employer] among its partners, vendors or in the community at large.”
3.         A policy prohibiting the use of the employer’s name, logos or trademark.
        In its “Social Media” policy, the employer prohibited the use of its name, logo or trademark without its consent.
4.         A policy prohibiting the solicitation and distribution of literature outside of work time in an area frequented by customers.
        The employer’s “No Solicitation/Distribution” policy provided that, “Solicitation and distribution of literature is also prohibited even when not on work time if such activity takes place in an area frequented by customers or otherwise interferes with work being performed by other employees.”
While it seems obvious that an employer would take issue with an employee disclosing another employee’s personal information, such as health, leave status, or social security number, or with an employee’s unauthorized use of the employer’s logo in social media postings, the Board continues to find that any type of policy that could even theoretically chill an employee’s Section 7 rights violates the National Labor Relations Act. 
Employers are advised to conduct regular reviews of their handbook policies to ensure compliance with the Board’s ever-growing list of unlawful policies.