On September 26, 2016, an ALJ struck down several workplace rules at a casino in Las Vegas, including two rules that prohibited “inappropriate conduct” and taking photographs on the casino floor. The ALJ found that, although the rules did not violate Section 7, a reasonable employee could interpret the rules as prohibiting them from engaging in concerted, protected activity and, therefore, were unlawful under the Act.
This decision marks yet another ruling striking down workplace civility rules. In this latest case, the ALJ found that the casino’s rule encouraging employees to “[d]isplay appropriate behavior at work” and prohibiting employees from “engaging in misconduct on or off-duty that (as determined by [the casino]) materially and adversely affects job performance or tends to bring discredit to [the caisno]” was ambiguous and overbroad.
The ALJ found the a reasonable employee could construe the rule as prohibiting discussions about supervisory or management decisions and could ultimately “chill” employees’ Section 7 rights. The ALJ further found that the rule contained a “patent ambiguity.” The ALJ reasoned that the rule could be “easily interpreted” to prohibit an untold number of activities that might “affect job performance” or “bring discredit to the casino,” including protesting working conditions or talking about terms and conditions of employment. Although the ALJ recognized that some forms of speech can be prohibited – such as abusive, injurious, or threatening language – the ALJ found that this rule failed to make clear that it was limited to such non-protected speech.
The ALJ also found that the casino’s rule prohibiting employees from taking photographs or making recordings on the casino floor was overbroad and not narrowly tailored. The rule prohibited employees from actively taking photos and from using personal devices, such as cell phones with cameras, while on duty. The ALJ found that employees have a right to photograph working conditions in furtherance of concerted activity, including, among other things, to record images of protected picketing, document unsafe workplace equipment or hazardous working conditions, document and publicize discussions about terms and conditions of employment, document inconsistent application of employer rules, or record evidence to preserve it for later use in administrative or judicial forums in employment related actions.
Although such bans on photographs are common at casinos to protect patron privacy, the ALJ found that the rule was not narrowly tailored to protecting patron privacy. Instead, the ALJ found that the rule was overbroad and would lead a reasonable employee to interpret the rule as prohibiting photographs of working conditions.