• NLRB Continues to Scrutinize Employee Handbook Policies
  • February 1, 2013 | Authors: Stuart R. Buttrick; Brian R. Garrison
  • Law Firm: Faegre Baker Daniels - Indianapolis Office
  • Recently, the National Labor Relations Board (NLRB) has given increased attention to policies in non-union employers' employee handbooks, finding that certain policies violated the National Labor Relations Act (NLRA) by restricting employees' ability to engage in protected concerted activity. Continuing this trend, the NLRB recently found that a non-union employer's handbook policies regarding employees' contact with the media, contact with law enforcement and confidentiality of company information were unlawful because they restricted employees' rights under the NLRA.

    Communications With the Media

    DirecTV, the company at issue in this case, had two policies that spoke to employees' communications with the media. The first provision, in a section of the handbook titled "Communications and Representing DirecTV," stated: "Do not contact the media." The NLRB held that this prohibition was unlawful because Section 7 of the NLRA protects employee comments to the media about labor disputes. According to the NLRB, "[e]mployees would reasonably construe the unequivocal language in the [company's] rule as prohibiting any and all such protected communications to the media regarding a labor dispute." In finding this restriction unlawful, the NLRB also said it was "significant" that the rule "makes no attempt to distinguish unprotected communications, such as statements that are maliciously false, from those that are protected."

    The second provision regarding employee contact with the media stated that "[e]mployees should not contact or comment to any media about the company unless pre-authorized by Public Relations." The NLRB similarly found that this restriction violated the NLRA because requiring the company's advance approval of any media comment by an employee would be interpreted by employees to mean that they were prevented from expressing any disagreement with DirecTV concerning their wages, hours or terms and conditions of employment. So, the NLRB found that "any rule that requires the employees to secure permission from their employer" to engage in protected communications is unlawful.

    Communications With Law Enforcement

    The third handbook provision at issue spoke to employees' contact with law enforcement. It instructed employees that, "[i]f law enforcement wants to interview or obtain information regarding a DirecTV employee ... the employee should contact the security department ..."  In finding this provision unlawful, the NLRB noted that the NLRA protects employees' right to file unfair labor practice charges or provide information to the NLRB when investigating such charges. The NLRB then found that employees would understand NLRB employees to be "law enforcement" under this policy, so it "would lead reasonable employees to conclude that they would be required to contact the [company's] security department before cooperating with a [Board] investigation." While the NLRB acknowledged that an employer may have a legitimate interest in being informed of law enforcement officials' attempts to interview employees, the NLRB found that DirecTV's policy was overbroad and ambiguous because employees could not determine how to distinguish one situation from the other.

    Confidentiality and Company Information

    Next, the Board found that DirecTV violated the NLRA by including provisions in its handbook that instructed employees to "[n]ever discuss details about your job, company business or work projects with anyone outside the company" and "[n]ever give out information about customers or DirecTV employees." The Board determined that this instruction would lead employees to believe they were restricted in their ability to discuss their wages, hours, and terms and conditions of employment with fellow employees or third parties such as union representatives or governmental agencies concerned with workplace matters.

    The employee handbook also included a policy that instructed employees they "may not blog, enter chat rooms, post messages on public websites or otherwise disclose company information that is not already disclosed as a public record." The Board found this provision to be overbroad and unlawful, and held that the phrase "company information" would be interpreted by employees to include employee records, which would include information about their own wages, disciplinary actions and employee ratings, or those of other employees.

    Bottom Line

    This decision serves as an important reminder to employers to review their handbook policies and assess whether those policies could be read to restrict employees from communicating about wages, hours, and other terms and conditions of employment with other employees or third parties. The NLRB could interpret policies similar to those described above as unlawfully restrictive of employees' rights under the NLRA.

    Notably, however, the ultimate impact of this decision (as well as others issued by the NLRB in 2012 and 2013) is in limbo in light of the United States Court of Appeals for the District of Columbia Circuit's determination that three of President Obama's appointments to the NLRB—two of whom participated in the decision in this case—were unconstitutional, thus depriving the NLRB of the quorum needed to issue valid decisions. As a result, depending upon any appeals to the United States Supreme Court regarding the permissibility of President Obama's "recess" appointments, this and other NLRB decisions might have no legal merit.