By Nelson Cary and Ashley Manfull
Employers beware. The NLRB remains very interested in what you say in your employee handbook or other written policies and procedures. Its most recent decision even dipped its toe into the much publicized social media world, but didn’t directly confront a “social media policy” of the type the AGC has issued multiple memoranda about.
In Costco Wholesale Corp., 358 N.L.R.B. No. 106 (Sept. 7, 2012), the NLRB determined that the following prohibitions found in the employee handbook violated employees’ Section 7 rights:
- Discussing “private matters” of members and other employees, defined to include sick calls, leaves of absence, FMLA call-outs, ADA accommodations, and workers’ compensation issues;
- Sharing, for personal or public use, any “sensitive information” including membership, payroll, confidential financial, credit card numbers, social security numbers, employee personal health information, or employee names, addresses, telephone numbers and email addresses; and
- Electronically posting statements that “damage the Company…or damage any person’s reputation.”
This last policy, regulating the electronic posting of statements, was broad enough to cover statements on Facebook, Twitter, or similar social networking sites, although those were not specifically referenced in Costco’s policy.
The NLRB determined that each of the employer rules summarized above could reasonably be interpreted by employees to interfere with their ability to discuss wage information and other terms and conditions of employment with other employees and third parties, including union representatives.
On a positive note for employers, the NLRB ruled that Costco’s policy requiring employees to use “appropriate business decorum” in communicating with others did not violate the NLRA. The ALJ found that employer rules, which on their face are clearly intended to promote “a civil and decent workplace,” cannot reasonably be construed as restricting Section 7 activity, even though in some circumstances protected conduct might be restricted.
The NLRB also found that a rule that prohibited employees from “leaving Company premises during working shift without permission of management” was permissible. The NLRB reasoned that the prohibition does not include any reference to any term that would reasonably be construed as similar to the term strike or “walk out.” Thus, a reasonable employee would not believe that the policy limited the ability to engage in a strike. Chairman Pearce (D) dissented from this part of the ruling. He would have found Costco’s rule violated the NLRA.
Importantly, the NLRB noted that one factor in its determination was that the handbook policies did not present accompanying language that would tend to restrict their application or explicitly carve out an exception for employees engaging in Section 7 activities. Thus, it is possible that an appropriate disclaimer referencing Section 7 rights may be sufficient to satisfy the NLRB. However, the AGC has taken a different approach, opining that a general disclaimer is insufficient to save a policy that otherwise violated Section 7.
Because of the intensely fact specific nature of the NLRB’s rules in this area, labor professionals will want to carefully review the specific language in employer policies. This review should encompass all of an employer’s policies, not just those applicable to social media. Labor professionals will also want to consider whether a general disclaimer would be appropriate in their particular situation.