By now, most employers know that the NLRB is cracking down on’ practices and policies that could interfere with employees’ rights to engage in “protected concerted activity” under the NLRA. Unfortunately, as the Board continues to expand the scope of its decisions, many employers (and lawyers) are forced to play catch-up and revise policies. A recent case from the United States Court of Appeals for the District of Columbia is a lesson in the need to carefully review seemingly innocuous language in employee handbooks and policy manuals.
In Hyundai America Shipping Agency, Inc. v. Nat’l Labor Relations Board, No. 11-1351, November 6, 2015, the D.C. Circuit reviewed the NLRB’s decision concerning four policies promulgated by Hyundai. Under NLRB case law, a rule promulgated by an employer will found to be invalid if it would reasonably tend to chill an employee’s exercise of their Section 7 rights. This is a two-step inquiry. First, the Board looks to see whether the rule explicitly restricts employees’ rights. If not, then the Board examines whether the rule (a) could be reasonably construed by employees to restrict protected activity, (b) was adopted in response to the exercise of such protected activity, or (c) has been used to restrict such protected activity. In this case, the NLRB, and the D.C. Circuit, examined Hyundai’s policies under the first of the three variants – whether the policies were improper on their face.
The D.C. Circuit ultimately found the following three policies invalid:
(i) An oral rule that prohibited employees from discussing with co-workers matters under investigation. The Court noted that this blanket rule prohibits employees from discussing the terms and conditions of their employment, and that Hyundai did not present a legitimate and substantial business justification for the rule. While federal and state antidiscrimination statutes could justify the need for confidentiality in some cases, the rule was too broad to survive.
(ii) A rule requiring employees to only disclose information from the company’s electronic communications systems (i.e. email) to authorized persons. Both parties agreed that the rule was not meant to cover information related to terms and conditions of employment; however, the rule, as stated, covered such protected activity and was overbroad.
(iii) Hyundai also had a rule allowing for discipline for performing activities other than company work during “working hours.” Here, the issue was the use of working “hours,” which includes break time. Work “time,” which excludes breaks, would be appropriate language.
The D.C. Circuit did overturn the Board’s decision as to a rule directing, but not mandating, employees to voice work complaints to their supervisor or human resources. The Board argued that the rule prohibited voicing complaints about protected concerted activity to co-workers. The D.C. Circuit found no such prohibition, instead focusing on the permissive effect of the rule.
As repeated many times, the devil in making a workplace policy “NLRB-compliant” is in the details. The NLRB will challenge language in handbooks and rules that it believes restricts employee rights, even if such language is seemingly innocuous and immaterial.