THE NLRB’S ATTACK AGAINST EMPLOYEE HANDBOOKS Jay R. Fries, Esquire FORD & HARRISON LLP 502 Washington Avenue, Suite 400 Baltimore, MD 21204 (410) 321-7310 jfries@fordharrison.com Diane: Add organization and date below the picture?

NLRB and Employee Handbook Rules In the last several years, the NLRB has scrutinized non-unionized employer work rules in employee handbooks and manuals to determine whether any of those rules have a chilling effect on employees’ Section 7 activity and thus violate Section (8)(1) of the NLRA.

Section 7 of the National Labor Relations Act: Employees shall have the right . . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .

CONCERTED PROTECTED ACTIVITY Concerted = 2 or more employees acting together OR One employee acting of behalf of other employees

CONCERTED PROTECTED ACTIVITY Protected = involves issues of wages, hours or working conditions Issues that are unique or personal to one employee may not be “concerted” or “protected” Activity that is otherwise protected may lose its protection if it is overly disruptive, reckless or malicious.

Lutheran Heritage Village – Livonia, 343 NLRB 646 (2004) Three-prong test to determine whether an employer rule violates Section 8(a)(1) when the work rule does not expressly ban protected concerted activity. * 1) Employees “would reasonably construe” the rule’s language to prohibit Section 7 activity; or The rule was promulgated in response to union activity; or The rule was actually applied to restrict the exercise of Section 7 rights.

Handbook policies, including social media policies, are carefully scrutinized. Mere maintenance (versus enforcement) of an overly broad policy can have severe consequences. Jurys Boston Hotel, 356 NLRB 927 (2011) Mere maintenance of no-solicitation/distribution rules, no-loitering policy, and a dress code policy that banned the wearing of buttons violated NLRA.

Confidentiality Rules that the Board views as illegal Do not discuss “customer or employee information” outside of work, including “phone numbers and addresses.” “Never publish or disclose [the Employer’s] or another’s confidential or other proprietary information. Never publish or report on conversations that are meant to be private or internal to [the Employer].”

Rules prohibiting employee conduct toward the Company, supervisors, co-employees or third parties that the Board views as illegal Company/Supervisors Do “not make fun of, denigrate, or defame your co-workers, customers, franchisees, suppliers, the Company, or our competitors.” “Be respectful of others and the Company.” Co-employees Do not make “insulting, embarrassing, hurtful or abusive comments about other company employees online,” and “avoid the use of offensive, derogatory, or prejudicial comments.” Third parties Employees are not “authorized to speak to any representatives of the print and/or electronic media about company matters” unless designated to do so by HR, and must refer all media inquiries to the company media hotline.

Restrictions on employee use of logos, trademarks or copyrights viewed as illegal by the Board “Use of [the Employer’s] name, address or other information in your personal profile [is banned]. . . . In addition, it is prohibited to use [the Employer’s] logos, trademarks or any other copyrighted material.”

Rules restricting photography and recording viewed as illegal by the Board “No employee shall use any recording device including but not limited to, audio, video, or digital for the purpose of recording any [Employer] employee or [Employer] operations . . . .”

Rules restricting employees from leaving work viewed as illegal by the Board “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. “Walking off the job . . .” is prohibited.

Conflict-of-interest rules viewed as illegal by the Board Employees may not engage in “any action” that is “not in the best interest of [the Employer].”

Use of Employer Email System “[E]mployee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.” – Purple Communications, 361 NLRB No. 126 (2014).

AT WILL EMPLOYMENT CLAUSES Hyatt Hotels settled a case with a regional director of the Board after its at-will acknowledgment (along with other policies) was challenged as an unlawful interference with employees’ Section 7 rights. As part of the settlement, Hyatt agreed to change its at-will acknowledgment across the country and rescind and revise existing acknowledgments. In the Matter of Hyatt Hotels Corp., Case No. 28-CA-0061114.

Class Action Waivers and Mandatory Arbitration Agreements NLRB has ruled that mandatory arbitration agreements containing “class action waivers” violate employee Section 7 rights Note: Multiple federal courts of appeals disagree.

Social Media Policies Targeted Echostar Corp., NLRB Case No. 27-CA-066726, (2012). Employer’s social media policy told employees that they “may not make disparaging or defamatory comments about Echostar, its employees, officers, directors, vendors, customers partners and affiliates or…their products/services” Policy also stated to “remember to use good judgment”

Social Media Policies Targeted (2) NLRB judge concluded that the term “disparaging” went beyond a proper employer prohibition and intruded on the rights of employees protected by Section 7 of the National Labor Relations Act. Statement to use “good judgment”, to ask questions regarding the policy to HR, and that the policy should be interpreted and applied consistent with the law did not save the policy

COSTCO WHOLESALE CORP., 358 NLRB 1100 (2012) Costco’s policy banned workers from posting statements online that harmed the company’s reputation – or anyone else’s. The Board found that although Costco’s rule didn’t explicitly bar the retailer’s employees from engaging in concerted activity, it was nonetheless too broad because employees could read it as a ban on protesting the company’s treatment of workers. The Board found that the policy could reasonably be seen as chilling employee’s exercise of their rights to organize.

KARL KNAUZ MOTORS, INC., 358 NLRB 1754 (2012) A BMW employee was fired after he published Facebook posts ridiculing his dealership for serving hot dogs rather than more upscale foods during a sales event, along with other negative posts about an accident at a Land Rover dealership owned by the same company. The NLRB agreed that the termination was legitimate because the employee was fired for the unprotected posts about the accident.

“Savings Clause” Nothing in this policy will be interpreted or applied so as to interfere with employee rights to self-organize, form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities.”

Passavant Memorial Hospital 237 NLRB 138 (1978) Not sufficient simply to remove illegal work rules. Must repudiate past rules and assure employees of rights under NLRA.

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