Labor E-Bulletin - Policies on Confidentiality, Fraternization, Filing Complaints and Solicitation Help to Violate Federal Labor Law
March 27, 2007
Some relatively common policies found in employee handbooks are coming under increasing scrutiny as possible violations of the National Labor Relations Act (“NLRA”). Two recent court decisions held that policies on confidentiality, solicitation, fraternization, and filing internal complaints violated the NLRA. Such rulings are an important reminder that even non-unionized employers must carefully consider the possible implications under the NLRA when adopting policies for employee handbooks.
The confidentiality provision recently held to be unlawful was contained in an employee handbook under the heading “We Honor Confidentiality.” The handbook provided that employees were subject to discipline for violating a “confidence” or releasing confidential information without authorization. A union that was attempting to organize the employer’s workforce filed a charge with the National Labor Relations Board (“NLRB”) claiming that the handbook provision was preventing employees from sharing information with the union. Both the NLRB and a federal court of appeals agreed that an employee could reasonably construe the policy to prohibit activity protected by law, such as sharing information on wages, benefits, and conditions of employment.
Handbook provisions on soliciting, making complaints, and fraternizing recently met a similar fate. The employer, a large provider of guard services, prohibited solicitation and distribution of literature at all times while on duty or in uniform. The policy was found to violate the NLRA because employees could reasonably read the policy to unlawfully restrict soliciting while off duty but in uniform. The employer failed to make clear that employees could solicit while off duty but in uniform, if they covered company insignia to avoid their actions being attributed to the company.
The complaint policy at issue required employees to follow the chain-of-command when making complaints and prohibited registering complaints “with any representative of the client.” Although the company argued that the restriction only applied to employees while on duty, the NLRB found that the policy could reasonably be read to prohibit employees from discussing terms of employment with customers even while off duty, in violation of the NLRA.
Finally, the employer’s fraternization policy was also found to violate the NLRB. The policy’s admonishment to not “fraternize on duty or off duty, date or become overly friendly with the client’s employees or with co-employees” failed to clearly distinguish between prohibiting only “personal entanglements” and activity protected by the NLRA, such as fraternal discussion of terms and conditions of employment.
Regardless of whether a workforce is represented by a union, employee handbooks and other policy statements should be periodically reviewed for compliance with the NLRA and other applicable laws.
The confidentiality provision recently held to be unlawful was contained in an employee handbook under the heading “We Honor Confidentiality.” The handbook provided that employees were subject to discipline for violating a “confidence” or releasing confidential information without authorization. A union that was attempting to organize the employer’s workforce filed a charge with the National Labor Relations Board (“NLRB”) claiming that the handbook provision was preventing employees from sharing information with the union. Both the NLRB and a federal court of appeals agreed that an employee could reasonably construe the policy to prohibit activity protected by law, such as sharing information on wages, benefits, and conditions of employment.
Handbook provisions on soliciting, making complaints, and fraternizing recently met a similar fate. The employer, a large provider of guard services, prohibited solicitation and distribution of literature at all times while on duty or in uniform. The policy was found to violate the NLRA because employees could reasonably read the policy to unlawfully restrict soliciting while off duty but in uniform. The employer failed to make clear that employees could solicit while off duty but in uniform, if they covered company insignia to avoid their actions being attributed to the company.
The complaint policy at issue required employees to follow the chain-of-command when making complaints and prohibited registering complaints “with any representative of the client.” Although the company argued that the restriction only applied to employees while on duty, the NLRB found that the policy could reasonably be read to prohibit employees from discussing terms of employment with customers even while off duty, in violation of the NLRA.
Finally, the employer’s fraternization policy was also found to violate the NLRB. The policy’s admonishment to not “fraternize on duty or off duty, date or become overly friendly with the client’s employees or with co-employees” failed to clearly distinguish between prohibiting only “personal entanglements” and activity protected by the NLRA, such as fraternal discussion of terms and conditions of employment.
Regardless of whether a workforce is represented by a union, employee handbooks and other policy statements should be periodically reviewed for compliance with the NLRA and other applicable laws.
