On July 18, 2016, Administrative Law Judge Robert A. Giannasi (the “ALJ”) concluded that an employer violated the National Labor Relations Act (the “Act”) by maintaining employee handbook rules that 1) prohibited employees from conducting “personal business” while on the employer’s premises; 2) banned solicitation if it caused “discomfort or unreceptiveness”; 3) required the posting of a disclaimer for online content about work issues; and 4) required the employer’s approval for solicitations “in support of any causes.” Casino Pauma, NLRB ALJ, No. 21-CA-161832 (July 18, 2016).
Since mid-2015, the employer maintained an employee handbook rule providing, in relevant part: “Team members are to conduct only [employer] business while at work. Team members may not conduct personal business or business for another employee during their scheduled working hours.” The ALJ concluded that this prohibition against conducting “personal business” on “while at work” was unlawful, as it could reasonably be read to restrict employee communications about union or other protected rights in non-work areas and on non-work time. Specifically, the “while at work” restriction was overly broad because it banned protected activity during lunch, breaks, and before and after work.
The ALJ also found that the employer could not require employees to cease solicitation or distribution if “the intended recipient expresses any discomfort or unreceptiveness whatsoever.” Relying on Ryder Truck Rental, Inc., 341 NLRB 761 (2004), which held that employees have a right to “engage in persistent union solicitation even when it annoys or disturbs the employees who are being solicited,” the ALJ concluded that the seemingly innocuous rule still violated the Act.
The employer’s online disclaimer rule, which required employees posting online content about work issues to include a disclaimer that the opinions being posted were the employee’s and not the employer’s, similarly failed to pass muster under the Act. The ALJ reasoned that the rule was written so broadly as to interfere with rights protected under the Act. The ALJ found, for example, that the rule could be read to restrict employees from “using their own private computers and email accounts” to complain to each other about their working conditions. Similarly, according to the ALJ, the rule unlawfully banned the personal use of photographs taken at the employer’s property. As the ALJ explained, “[m]odern technology has made the use of the photographic ability of the ubiquitous iPhone commonplace in today’s society. One can easily imagine an employee who observes unsafe conditions in the workplace taking a photo for use by a union, to obtain the support of fellow employees in an effort to revolve the unsafe working conditions, or even to report them to the appropriate government agencies.”
Finally, the ALJ struck down the employer’s rule prohibiting solicitation “in support of any causes” without the employer’s prior approval because the rule was broad enough to apply to protected rights to solicit of fellow employees on behalf of unions, and the prior-approval requirement constituted an unlawful restriction on those rights.
Employers can add these and similar provisions to the growing list of work rules found unlawful under the Act. Given the National Labor Relations Board continued focus on employee handbook rules, employers should review their employee handbooks and revise handbook rules and prohibitions such that they are tailored to the employers’ legitimate business interests and not likely to be “reasonably construed” as interfering with employees’ rights under the Act.