For anyone who has been following the National Labor Relations Board (NLRB) over the past five or so years, you know that the NLRB has significantly enhanced its scrutiny of employer policies that, in its view, impinge upon the right of employees to engage in “protected, concerted activity.” Generally speaking, protected, concerted activity is the right — arising under Section 7 of the National Labor Relations Act (NLRA) — of employees to communicate collectively with each other and outside third parties (unions, the NLRB and the like) about their wages, hours and working conditions.
The focus on protected, concerted activity by the current iteration of the NLRB first received notice in the context of employer social media policies, many of which the NLRB claimed squelched employee rights to talk about their wages, hours and other terms and conditions of employment on social media. Because of the furor these social media cases caused, the NLRB’s then-Acting General Counsel, Lafe Solomon, issued three reports on social media cases brought to the agency. Each report attempted to clarify the NLRB’s decisions in these social media cases. While the attempt was valiant, the results were confusing, with similar sets of facts sometimes leading to different results, even within the same report.
Around the same time, the NLRB also began scrutinizing employee handbook provisions and other employer policies using the same protected, concerted activity concept. In doing so, the NLRB has found standard employee handbook provisions — ones involving such things as company confidential information, employee conduct, use of company logos, copyrights and trademarks, restrictions on employee photography and recording, and rules on employees leaving work — to run afoul of the NLRA’s protections on concerted employee activity regarding wages, hours and terms and conditions of employment. Since the NLRB commenced this scrutiny, many employer rules have been found unlawful by the NLRB under the NLRA.
On March 18, 2015, the NLRB’s current General Counsel, Richard Griffin, Jr., issued a report concerning the agency’s cases involving employer rules. Like the reports on its social media cases, this new report makes an effort to try to distinguish cases in which employer rules were found lawful and those in which such rules were found to unlawfully impinge upon employee protected, concerted activity rights. As with the social media reports, however, the new employer-rules report falls short in establishing useful parameters for employers who want to ensure that their work rules are lawful.
For example, in the section involving work rules that restrict employees from leaving work, the report cites the following rule as unlawful because, according to the report, its phrase “walking off the job” might encompass employee strikes:
“Failure to report to your scheduled shift for more than three consecutive days without prior authorization or ‘walking off the job’ during a scheduled shift” is prohibited.”
In contrast, the following rule was found lawful, largely because the employer that published it operated a facility for dementia patients:
“Walking off shift, failing to report for a scheduled shift and leaving early without supervisor permission are also grounds for immediate termination.”
The subtle distinctions used by the NLRB to distinguish language like this that is often very similar — one example lawful, the next unlawful — provides little useful guidance to employers. Most would acknowledge that an employee walking off the job in a setting with dementia patients is critical, but why is it not critical when an employees does so in a heavy manufacturing setting with the potential safety issues that come with an employee abandoning critical machinery. The NLRB fails to offer a viable explanation. Nor does the NLRB explain how it makes such a determination (for example, by enunciating the factors it uses).
Often, the reasoning offered by the report for the distinctions is that a lawful employer rule contains examples and other clues that give it context. That context purportedly makes it clear to employees that the rule is not intended to impinge on their protected, concerted activity rights. This context explanation, of course, makes the decision about whether a given rule is lawful or unlawful almost totally subjective, and it certainly fails to provide employers with bright-line parameters to aid in the drafting of lawful work rules.
Perhaps the most useful portion of the report comes at the end where negotiated employee handbook language of Wendy’s International LLC is presented. This language resulted from the 2014 settlement of a case brought by the NLRB against Wendy’s related to the lawfulness of its work rules under the protected, concerted activity umbrella. The negotiated language, which, according to the report, “the Office of the General Counsel considers lawful,” at least has the benefit of being approved by the current NLRB prosecutor. For the moment, it may provide employers with some language to use when trying to craft lawful employer rules. That is, if the context of the employer implementing them is right in the mind of the NLRB.