• NLRB Finds That A Company’s “Positive Workplace” And “No-Recording” Policies Are Unlawful
  • September 12, 2016 | Author: A. Stevenson Bogue
  • Law Firm: McGrath North Mullin & Kratz, PC LLO - Omaha Office
  • In a recent decision, the National Labor Relations Board (NLRB) continued its assault on employers’ work rules and policies by finding that policies which require employees to maintain a “positive work environment” in the workplace and which also prohibited employees from making recordings in the workplace, could reasonably be found to chill employees in the exercise of their rights protected by the National Labor Relations Act.

    The employer T-Mobile USA, Inc., maintained a policy which provided as follows:

    Employees are expected to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers and management.

    The Board found that sentence violated the National Labor Relations Act, because employees could reasonably construe the rule to restrict potentially controversial or contentious communications and discussions in the workplace, including those associated with labor disputes and union organizing efforts. It found that those latter topics frequently involve controversy, criticism of the employer, arguments and less-than-“positive” statements about the terms and conditions of employment and the employer. It distinguished the rule maintained by T-Mobile from other rules which it approved which prohibited “displaying a negative attitude that is disruptive to other staff or has a negative impact on guests.” It found that the rule in question was much broader and much more likely to be construed by employees as an improper limitation of their lawful activities.

    The second rule provided in part as follows:

    To prevent harassment, maintain individual privacy, encourage open communications, and protect confidential information, employees are prohibited from recording people or confidential information using cameras, camera phone/devices or recording devices . . . in the workplace. Apart from customer calls that are recorded for quality purposes, employees may not tape or otherwise make sound recordings of work-related or workplace discussions.

    The NLRB found that the rule in question was not narrowly tailored to its ostensible purpose, namely maintaining an harassment-free workplace and protecting trade secrets. It found that employees have a protected right to record images of such things as protected picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about the terms and conditions of employment, and preserving evidence for later use in administrative or judicial forums. It pointed out that the recording prohibition was not narrowly tailored to preventing such things as harassment and that the policy neither cited laws concerning workplace harassment nor specified that the restriction was limited to recordings which could constitute unlawful harassment. It further pointed out that the rule was not restricted to working areas, and could be construed to prohibit recordings during non-working areas during non-working hours.

    The prohibitions established in decisions such as this reinforce longstanding NLRB policy precluding an employer from limiting employees in their discussion of wages, benefits, terms and conditions of employment. In doing so, the NLRB has served notice that it will continue close scrutiny of employers’ policy and will find unlawful any policy which could reasonably be construed to restrict protected employee speech in support of labor disputes or union organizing efforts.

    The invalidation of the employer’s rule regarding recordings is a bit more troubling. Many employers have very general “no-recording” rules which are not tied to a specific goal, such as preventing harassment. The lesson of this particular case is that if an employer wants to try to maintain a “no-recording” rule, it should establish and be able to articulate a rationale for maintaining that rule, and then reflect that rationale on the face of the rule itself. However, given the direction this particular version of the NLRB is moving in, employers should not be confident that any no-recording rule will be approved.

    All employers would be well served by reviewing their present employment policies with a particular eye toward those policies which might restrict protected employee speech and/or activities in support of protected activities including, but not limited to, labor disputes, potential workplace grievances, discussions about terms and conditions of employment, or union organizing activities.