Recently, the National Labor Relations Board (“NLRB”) has been clear in its direction that certain “overbroad” employee handbook provisions concerning harassment, investigation confidentiality and the like violate the National Labor Relations Act (“NLRA”). On August 9th, 2016, Administrative Law Judge Robert Ringler continued this trend with a published decision involving a Chicago car dealership.
In his decision, it was claimed that the following Employee Handbook policies were unlawful:
Harassment Policy: Investigation of a harassment complaint will be conducted in a manner that protects … confidentiality …. Employees involved in an investigation are expected to refrain from discussing it with others ….
Confidentiality Policy: [T]he Dealership must maintain confidentiality …. The Dealership requires that all employees keep and maintain any and all confidential information in the strictest of confidence …. Confidential information includes … information or records regarding any of its past or present employees; … [and] this Employee Handbook; or operating policies or procedures of the Dealership….
Information Request Policy: [I]t is … common to receive inquiries from outsiders …. If you receive a telephone call, letter or any other request for information about a current or former employee of the Dealership, you should immediately direct the call to Human Resources with no further response.
Cell Phone Policy: This policy states that: [C]ell phones … can be very disruptive …. Use of camera cell phones to take pictures or videos is strictly prohibited … on Dealership property….
Administrative Law Judge Ringler held that the above harassment policy unlawfully prohibited employees involved in an investigation from discussing it with other employees in violation of Section 7’s right to discuss discipline or ongoing disciplinary investigations involving themselves or coworkers. He further held that there was an absence of a showing that the ban had a legitimate and substantial business justification that outweighed employees’ Section 7 right to improve the terms and conditions of their employment by seeking outside assistance.
The cell phone policy was also found to unlawfully bar employees from using camera cell phones to take pictures or videos . . . on Dealership property; as such a rule could be reasonably construed to proscribe employee discussions of workplace footage with each other or the Union.
Judge Ringler found the confidentiality policy unlawfully required employees to maintain the privacy of employee information, the Employee Handbook and operating policies. He concluded that this policy could be reasonably construed by employees to bar them from collectively discussing their terms and conditions of employment with each other or the Union.
The information request policy was also found to unlawfully ban employees from talking to the media, government or other outlets without authorization. Judge Ringler noted that the NLRB had previously held that preauthorization requirements unduly interfere with the Section 7 right to improve terms and conditions of employment by seeking outside assistance.
Judge Ringler ordered that the dealership cease and desist and to take certain affirmative action designed to effectuate the Act’s policies. The dealership was ordered to rescind the overbroad policies and rules and to furnish current employees with either inserts for their current handbooks advising that the policies were rescinded and/or to distribute revised handbooks.
Best Practice Recommendation
Employers can no longer claim to be blindsided by the NLRB’s position regarding very common employee handbook policies. The NLRB has been quite clear in its position as of late. Every employer should be reviewing its employee handbook policies to ensure that the language is not potentially violative of Section 7 rights. This includes both public and private employers as well as those employers subject to and not subject to collective bargaining. In other words, all employers should be reviewing their policies.
