Employers Can’t Press Mute on Employee Solicitations at Work, NLRB Says

Randi Klein Hyatt
Randi Klein Hyatt

Hands off the remote. Last Thursday, the National Labor Relations Board (NLRB) took control, ruling that Dish Network must revise its solicitation policy to allow workers to engage in concerted activity in work areas during non-work times. Dish Network, LLC, Case 27-CA-131084 (March 3, 2016). The NLRB affirmed an administrative law judge’s ruling that Dish Network’s policy seemed likely to suppress workers’ protected activities.

The charging party, David Rabb, worked in sales at Dish Network’s Littleton, Colorado call center. During his employment, Rabb filed a complaint with the Colorado Department of Labor about the company’s commission policies. He asked coworkers to assist with his complaint—and solicited 15 coworkers to join in a private lawsuit—while at work. In response, Dish Network found Rabb in violation of the following “Solicitation in the Workplace” policy:

In the interest of maintaining a proper business environment and preventing interference with work and inconvenience to others, employees . . . may not distribute literature . . . or solicit for any other reason during work time or in work areas except as specifically authorized in advance by a vice president or higher. Employees who are not on work time [e.g., on lunch or break] may not solicit employees who are on work time.

Dish Network later terminated Rabb for leaving customers on hold; however, he charged that this reason was a pretext for engaging in solicitations. In its decision, the NLRB found that the “Solicitation in the Workplace” policy violated the National Labor Relations Act by wholly prohibiting all work area solicitations, including those that take place during non-work time. The NLRB also struck down the requirement that workers obtain managerial approval before engaging in solicitations. The NLRB ordered Dish Network to rescind its policy, revise its employee handbooks, post notice of the change at all locations, and mail copies to all employees. It further ordered reinstatement and back pay to Rabb.

This decision highlights the restrictions the NLRB imposes on an employer’s ability to  limit organizing on its property. However, because labor laws  change with the political climate, we can’t be couch potatoes about staying abreast of new decisions. Now, back to your regularly scheduled programming.

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