On March 14, the National Labor Relations Board (the “NLRB” or the “Board”), released four new Advice Memoranda. Advice Memoranda are issued from the Board’s Division of Advice, and offer direction to the Board’s Regional Directors about how to handle particular cases, and are therefore instructive as to the Board’s policy views on developing issues under federal labor law. Two of the recent memos provide policy guidance on interpreting the NLRB’s Boeing decision, which provided new standards for determining when workplace rules, policies, and handbook provisions violate employees’ rights under the National Labor Relations Act (the “NLRA”). A third memo
provides guidance on another emerging issue: when an employee may be discharged because of Facebook posts.
Labor Law Refresher
Recall that the NLRA protects workers’ rights to organize into trade unions, engage in collective bargaining, and take collective action to improve their wages, hours, and other terms and conditions at work. These rights are known as employees’ Section 7 rights. Section 8 of the law makes it unlawful for employers to interfere with those rights in certain ways (unfair labor practices).
To provide context for the two memos regarding work rules, recall the NLRB’s December 2017 Boeing decision. In that case, the Board set forth a new standard for determining whether workplace rules were lawful. The test focuses on
balancing two sometimes competing interests: (1) the rule’s potential negative impact on employees’ ability to exercise their Section 7 rights; and (2) the employers’ right to maintain discipline and productivity in their workplace. Boeing Co., 365 NLRB No. 154 (Dec. 14, 2017). For more detail about the Boeing decision, see Calfee’s December 2017 First Alert, here.
Workplace Rules and Handbook Policies
Nuance Transcription Services, Inc. and ADT, LLC are the two recently released Advice Memoranda dealing with whether an employer’s work rules are lawful. The rules at issue in Nuance involved the following: (1) a rule requiring employees to cooperate in employer investigations; (2) a rule requiring employees to keep the handbook confidential; (3) a rule prohibiting non-business use of employer email; and (4) a rule restricting disclosure of “payroll” and “other non-public information” in the Confidentiality/Non-Compete section of the employee handbook.
First, the Division of Advice found that the employer’s rule requiring employees to cooperate in
employer investigations was lawful. The employee at issue worked from home and complained to management that his or her supervisor had engaged in improper conduct and had access to and might misuse the employee’s personal information, such as his or her Social Security Number and home address. When an H.R. representative called the employee to investigate the complaint, the employee refused to answer the H.R. representative’s questions. Reprimanding the employee in a letter, the employer wrote, “employees are expected to participate in investigations of wrong-doing and refusing to do so is considered insubordination. Going forward, you will be expected to fully cooperate in any investigation. Failure to do so will subject you to disciplinary action, up to and including
The Division of Advice explained that while it would be unlawful for an employer to require employees to participate in the employer’s internal investigation of an unfair labor practice charge – under existing Board precedent, that participation must be purely voluntary – it is lawful for an employer to require workers to cooperate with employer investigations of workplace misconduct which do not involve allegations of an unfair labor practice.
Next, the Division of Advice concluded that the rule requiring employees to keep the handbook and its contents confidential was unlawful because it effectively precluded employees from discussing handbook policies regarding employee pay, benefits, and working conditions with unions and other third parties. The
NLRB called the employer’s justification for the rule – to prevent the handbook from falling into its competitors’ hands – “relatively weak.”
Similarly, the Division of Advice explained that the employer’s ban on personal use of its email system was unlawful. Employees should be “permitted to communicate with their coworkers concerning terms and conditions of employment, using work email address and over the employer’s email system, on non-work time.”
Finally, the Division of Advice found that the rule restricting disclosure of “payroll” information in the Confidentiality/Non-Compete section of the employee handbook was unlawful because “discussion and coordination between employees, unions, and others regarding wages and benefits is a core Section
7 right.” However, once the word “payroll” was removed, the phrase “any other non-public information” was not problematic, since employees would reasonably read “any other non-public information” to mean things like those appearing in the list: product designs, inventions, customer lists, etc.
The rules at issue in the ADT, LLC Memo involved: (1) a dress code rule; (2) a personal cell phone rule; (3) a confidential information rule; and (4) a media relations rule.
First, the Division of Advice found the dress code rule, which included a disputed bullet point prohibiting wearing “[a]ny items of apparel with inappropriate commercial advertising or insignia” to be lawful, since employees would not reasonably understand the rule, when viewed in
context, to apply to union insignia.
Next, the Division of Advice concluded that the personal cell phone rule was unlawful. The rule stated that, because cell phones can present a “distraction” resulting in “lost time and productivity,” personal cell phones may be used for “work-related or critical, quality of life activities only,” which the rule defined as including “communicating with service or health professionals who cannot be reached during a break or after business hours.” The rule also stated that other cellular functions “such as text messaging and digital photography, are not to be used during working hours.” The memo explained this was unlawful because employees have a right to communicate with each other through non-employer monitored channels during
lunch or break periods, and – despite the texting and photography qualifier prohibiting such functions “during working hours” – employees would reasonably read the rule as a whole as applicable to non-working times.
The confidential information rule was lawful. The rule stated that employees “should exercise a high degree of caution” when handling confidential information, which included proprietary information, personally identifiable customer or employee information, and HIPAA-related information. The rule was directed at employees who may have access to this sensitive information. The Memorandum opined that workers would not read the rule to limit organizing rights.
Similarly, the Division of Advice found the media relations rule lawful. It directed that only
designated spokespeople of ADT should speak to the media, financial analysts, or investors about the company to avoid sharing information that could be misinterpreted as an official company position and published as such. The memo stated that employees would reasonably construe the rule as only limiting who may speak on the employer’s behalf and would not read this rule to block discussion of workplace grievances with the media.
Fired for a Facebook Post
In the NLRB’s North West Rural Electric Cooperative Advice Memo, an employee worked as a lineman to install, repair, and maintain overhead electrical power lines. The employee had a history of raising safety concerns with the employer, including the number of linemen in the air on a project, the
training received, and the type of work performed. He previously had been disciplined for having a poor attitude and was eventually terminated because of a Facebook post.
The employee and several of his coworkers were members of an online community for linemen on Facebook called “Linejunk.” Another member of the group who did not work for the same employer posted a question regarding workplace safety, asking, in part, “I have been ask[ed] to be a part of a safety team. . . . what do we need to do to prevent accidents?” The employee at issue commented on the post, in part, by mentioning the small number of workers on his crew, the lack of training, and the unsafe conditions of the work. He didn’t mention his employer by name, but said of his employment with the company,
“what a goat bang it has been.”
After receiving complaints from the employee’s coworkers, who felt they had been thrown “under the bus” in the employee’s post, the employer fired the employee. Management stated that it was terminating his employment because he had aired his “harsh feelings” about the company on Facebook. The Division of Advice explained that the posts were protected by Section 7 because they were aimed at mutual aid or protection in that they addressed the lineman’s and his coworkers’ workplace safety concerns. The posts were concerted as he was engaged in a group discussion with other employees, coworkers and other employees in the same industry. “Employees” who may engage in concerted activities include “any employee, and shall not be
limited to employees of a particular employer.” 29 U.S.C. Sec. 152(3). Thus, even if the Facebook group had not contained the individual’s coworkers, the post would still have been a “concerted activity.” The memo also concluded that discussions of health and safety are considered “inherently concerted” and protected by Section 7. Accordingly, the Division of Advice found the termination unlawful.
The Board’s application of Section 7 principles to work rules, employee handbook policies, and social media posts can seem confusing and inconsistent; what in one case appears lawful can, in another case with seemingly similar facts, be found to violate the NLRA. Likewise, discipline or discharge of employees based on their social media
posts is also fraught with danger. These cases are inherently fact specific, and, as seen in the Nuance case, can turn on the presence or absence of one word.
When an employee or a union files an unfair labor practice charge with the NLRB, that prompts an investigation which can include an examination of all of the employer’s work rules, handbook provisions, and polices, whether related to the charge at issue or not. Thus, it’s smart for employers to take a look at their own workplace rules and policies and ensure they don’t run afoul of employees’ rights under the NLRA, and to tread carefully when deciding whether to discipline or discharge an employee based on social media posts. Indeed, because of the subtle nuances on which these cases so frequently
turn, review by experienced labor law counsel can help avoid trouble.