• Many employers include a “savings clause” that tells employees that nothing in the handbook intends to limit them from engaging in their rights protected by the Act. Employers should be careful not to have a savings clause that is too general, and any savings clause should be structured to specifically mention the broad rights that Section 7 of the Act confers on them
• Employers should be mindful that the NLRB has rejected handbook provisions restricting the use of “confidential” information because such provisions could be construed as restricting communicating with each other about wages and terms of employment, or from contacting a union about employees who might be interested in joining it
• For a similar reason, handbook provisions restricting the use of company logos may also be unlawful under Section 7 because, barring a legitimate business justification for the use restriction, using a logo in communications that are otherwise protected under Section 7 can be viewed as an effective way to communicate a dispute about the terms and conditions of employment
• Any restriction on communications with government entities could be cause for concern as well, as it could discourage or prevent employees form being involved in a government inquiry by the NLRB itself.

As we noted in a previous post, the Board has been particularly aggressive in finding employer policies will run afoul of Section 7 of the Act even when they have strong threads of common sense attached to them. In the case we reported on in March – Latino Express, Inc., NLRB Case No. 13-CA-122006 (Mar. 17, 2015) – the Board came down against an employer even when the employer had already rescinded its questionable policy. The Board was very unforgiving in that instance and seems to be continuing that trend.

In Rocky Mountain Eye Center, NLRB Case Nos. 19-CA-134567, 19-CA-137315 (May 6, 2015), two employees of a physician’s office were terminated for disseminating records housed on the office’s information system, a system that included both patient and employee data. To protect this information, the company’s confidentiality rule stated that a “[b]reach of either patient or facility confidentiality is considered gross misconduct and may lead to immediate dismissal” and defined “confidential information” as including, but not limited to “patient information, physician information, personnel information, billing, purchasing and financial information.” So far, so good, right?

To support a union organizing drive, the two employees at issue had accessed the employer’s information systems to obtain contact information for several other employees, for the purpose of having the Union contact them. When the Union began contacting these employees, the employees questioned how the Union received their contact information, which prompted an investigation into whether a breach of the office’s records occurred. After an investigation, the company determined that the employees breached the confidentiality rule by accessing and disseminating the employee information, housed in the same system as patient data, and were terminated in accordance with the company’s confidentiality rule.

Of course, the NLRB held that the termination was unlawful. After first concluding that the confidentiality rule could reasonably be construed to restrict Section 7 rights, the NLRB reasoned that it was overly broad in that it included a prohibition against utilizing employee contact information which could be used for Union organizing. Further, the employer made the mistake of housing both employee and patient data on the same system, and such a mistake could not be attributed to the employees who were merely exercising their Section 7 rights by collecting employee contact information, not patient information.

Although not as shocking as the decision in Latino Express, the beat is clearly continuing to go on at this activist NLRB. With another unforgiving decision, employers should continue to be vigilant in reviewing their policies and be prepared to defend against similar charges from the Board. Oh, and while you’re at it, it’s a good idea to keep employee information separate from customer, client and patient data.

The reason for these kinds of policies is obvious and intuitive: if you work here, you owe your employer a common law duty of loyalty. And loyalty means, in part, not publicly slamming your employer.

Most everyone also knows that the NLRB has taken aim at these kinds of policies because they arguably discourage employees from exercising their rights under Section 7 of the National Labor Relations Act. Section 7, broadly speaking, protects employees’ rights to organize and to work for their “mutual aid and protection,” which necessarily means being able to talk about working conditions. The NLRB (and administrative law judges applying NLRB rules) has held over and over in the past several years that employment policies prohibiting employee speech that is “damaging” to or “disparaging” of a business are overbroad – sure, the policy would prohibit some things that are clearly unlawful, like true defamation, but it would also prohibit publicizing a legitimate beef. If you don’t like your pay and you want to post “my employer is cheap” on Facebook, that statement is probably damaging to a company’s reputation – but it’s also clearly protected speech under the NLRA.

The fact is, many employers still have these kinds of policies in place. So what happens if you’re one of those employers, you read this blog, and you remove the offending policy from your employee handbook before anybody complains or notices? It’s like a tort suit without damages – no harm, no foul, right?

Wrong, at least according to one NLRB administrative law judge in Chicago a couple of days ago. A private bus company, Latino Express, maintained an employee disciplinary policy from July 2012 through April 2014 that made certain offenses immediate cause for termination. On the “don’ts” list were “[a]ny action that jeopardizes company contracts or loss of revenues” and “[a]ny activity which causes harm to the operations or reputation of Latino Express Bus Company.” The company removed those rules from its handbook in April 2014 “once the rules were brought to [its] attention,” and it even posted the revised policy on employee bulletin boards. A union representing workers at the company filed an unfair labor practice charge over the fact that the company had maintained allegedly unlawful policies (the ones that had already been rescinded), and the case went to an administrative trial.

The judge found that the policies in question could be reasonably read by employees to prohibit lots of legally protected things, like striking, or complaining about wages, or even negotiating a collective bargaining agreement, on the theory that all of these things could have an impact on revenues or affect the employer’s operations or reputation.

But what about the fact that the bus company rescinded the policies and went out of its way to let employees know the policies no longer applied? Not good enough, said the judge: “[M]aintaining unlawful rules for almost two years makes their silent withdrawal untimely.” But the withdrawal wasn’t “silent,” was it? What about posting the new policies on the bulletin boards? Not good enough, said the judge: the bus company “made no assurances to employees that it will not interfere with the exercise of their Section 7 rights under the Act in the future and that at no time did [the company] expressly admit that these rules were unlawful.”

In other words, the company didn’t go out of its way to say, “hey, we think we’re violating the law, and that’s why we’re changing the rules, and we promise we won’t do it again.”

This case doesn’t mean that an employer has to immediately issue a mea culpa to all employees if it still maintains a questionable policy. This is just one administrative judge in one city, and I would never recommend that an employer publicize to employees that it thinks it has been breaking the law. But the decision does stand as a good measure of just how unforgiving the NLRB is prepared to be – so rescind potentially unlawful policies, let employees know about policy changes – and cross your fingers.

The case is Latino Express Inc., NLRB Case No. 13–CA–122006 (Mar. 17, 2015).

After completing a recent union election, Care One issued a memorandum in response to reports of threats in the workplace that reminded employees that threats, intimidation and harassment were prohibited, and that anyone engaging in improper conduct would be subject to discipline. Care One attached its Workplace Violence Prevention Policy to the memorandum. So far, so good, right? Wrong.

Unlawful, said the Board. Because the memorandum referred repeatedly to the past union election, and there was no evidence that Care One actually investigated whether said threats occurred, the Board reasoned that it was likely issued to restrict the exercise of Section 7 rights, and that employees would reasonably construe the language to prohibit Section 7 activity. Although not surprising considering the current Board, the decision nevertheless promises to create some potholes that employers will have to navigate around.

Violence and threats of violence have traditionally been a line that employees exercising Section 7 rights generally cannot cross. Although the Board did not go so far as to give an approval of violence or threats, it narrowed the ways, and circumstances under which, employers may enforce their workplace threats and violence policies. Employers need to do a careful analysis before enforcing such policies, and when they do enforce them, they must make sure they are enforced in a neutral way so as not to run afoul of the Board.