Employers beware…it may be time yet again to review your handbooks to make sure that your policies do not violate the National Labor Relations Act (NLRA). A National Labor Relations Board (NLRB) judge recently ordered several Verizon Wireless stores to strike certain employee handbook policies. In all, the decision means Verizon Wireless must strike 10 employee handbook policies that violated the NLRA because they could be read to chill employees’ rights to engage in protected concerted activity.
Section 7 of the NLRA grants employees the right to engage in concerted activity for the purpose of mutual aid and protection. Section 8(a)(1) of the Act makes it unlawful for an employer to interfere with, restrain or coerce employees in the exercise of their Section 7 rights.
A handbook rule is illegal under NLRB precedent if it:
- Explicitly interferes with employees’ Section 7 rights to engage in concerted activity
- Leads workers to think their protected activity is blocked
- Was drafted in response to union activity
- Has been used to restrict protected activity
It was on the second of these four bases that the union challenged several provisions in an employee handbook that the company implemented in April 2015 and continuously maintained. The union specifically alleged that a number of Verizon’s policies were overbroad and therefore interfered with its employees’ exercise of Section 7 rights.
In the end, the administrative law judge agreed with the union, siding with it on all but one rule. The stricken rules included policies requiring workers to report their co-workers’ violations of handbook rules, as well as a footnote stating that employees must comply with the company’s code as a condition of continued employment; a code that may be changed by the company at any time and without notice to employees.
The judge also struck down rules barring employees from using company resources such as “emails, fax machines [and] computers” to solicit or distribute information, prohibiting them from discussing Verizon Wireless with outside organizations or associations, blocking them from using company systems in a way “directed to a group of employees inside the company on behalf of an outside organization,” and prohibitions on disclosing employee records or disparaging company products, services, or employees.
Verizon’s woes did not end there however; the decision also struck policies that allowed Verizon to monitor and search employees’ personal property, (including vehicles), barred employee’s from recording at work without management authorization, and blocked current and former employees from disclosing nonpublic company financial information without permission.
The only policy not struck by the judge related to employee privacy and required employees to take “appropriate steps to protect confidential personal employee information, including social security numbers, identification numbers, passwords, bank account information, and medical information.” The policy also prohibited accessing another employee’s personal information unless acting for a legitimate business purpose and in accordance with applicable law. In upholding this policy, the judge relied on prior NLRB precedent and Supreme Court precedent.
The NLRB has made it clear that it is willing to grant cease and desist orders to curtail employee handbook policies that it considers to be overbroad and therefore risk creating a “chilling effect” on the exercise of Section 7 rights. Because most private-sector employers are covered by the NLRA, they should periodically review their handbooks to ensure that no provision can be read as interfering with Section 7 rights. The Verizon Wireless decision provides a non-exhaustive but instructive glimpse into the types of handbook policies that recent NLRB decisions have found to be prohibited by the NLRA. While employers can expect some relaxation of the board’s position once it eventually has its full complement of Republican members, it likely will take several months before we might even start seeing board decisions that are more accepting of employer handbook policies.
The consolidated cases are Verizon Wireless and Communications Workers of America, AFL-CIO, case numbers 02-CA-157403, 02-CA-156043, 02-CA-156053 and 02-CA-161472, before the National Labor Relations Board Division of Judges.