The National Labor Relations Board (NLRB) continues to scrutinize workplace policies to assess whether such policies are overbroad and chilling to employees’ Section 7 rights. At issue in these cases is whether such policies could be reasonably interpreted by employees to prohibit their right to “engage in concerted activities for their mutual aid or protection” as protected by Section 7 of the National Labor Relations Act.

A recent case is illustrative. In Hills and Dales General Hospital, 360 NLRB No. 70 (April 1, 2014), the employer maintained a “Values and Standards of Behavior” policy. The policy provided, among other things, that employees:

  • will not make negative comments about fellow team members;
  • will represent the hospital in the community in a positive and professional manner;
  • will not engage or listen to negativity or gossip.

The NLRB found that all three of the above statements were facially unlawful. In its view, all three statements could reasonably be interpreted by employees to be a prohibition against saying anything in public that could be perceived as not positive toward the hospital. The NLRB thus concluded that these rules might chill the employees’ Section 7 right to make statements critical of their terms and conditions of employment to third parties.

Another recent case shows that the NLRB’s administrative law judges are following the Board’s lead in these types of cases. In Kroger Co. of Michigan, Case No. 7-CA-098566, decided April 22, 2014, an administrative law judge (ALJ) found that the company’s policy barring employees from conduct online that would be inappropriate at work—including disparagement of the company or its employees—was overbroad and violative of the employees’ Section 7 rights. While this decision is hardly surprising in light of recent Board decisions, another aspect of the ALJ’s decision is quite troubling. The company also maintained a policy which provided that if an employee published any work-related information online, the employee must include a disclaimer stating that the views expressed do not represent the opinion of the company and are the employee’s own. The ALJ found that although the policy did not expressly prohibit activities protected by Section 7, the demand for a disclaimer on every work-related online communication unduly burdened the employees to the extent that their protected activities might be chilled. Thus, he held that the maintenance of such a policy was a violation of the Act. In so holding, the ALJ expressly refused to follow a memorandum of the NLRB’s General Counsel issued in May, 2012 in which the General Counsel concluded that such a disclaimer was not unlawful and that an employer had a legitimate need for disclaimers of this type. Although this ALJ decision may be overturned on appeal, it certainly puts employers at risk until the Board clarifies its position.

Finally, the NLRB has signaled its intention to revisit its position on restrictions on employee use of employer-maintained email systems. In Purple Communications, Inc., No. 21-CA-095151, the General Counsel and the union argued that employees should have access to the employer’s email system for non-business purposes—including union organizing—as long they are on non-work time. Both also argued that if employees are allowed to use the employer’s email system for any personal purposes during work time, employees should be allowed to use the system for concerted activities at any time. The arguments were rejected by the ALJ based upon the Board’s 2007 Register Guard decision. In that Bush-era case, the Board held that employees have no statutory right to use an employer’s email system for non-business purposes.

The General Counsel and the union filed exceptions to the ALJ’s decision in Purple Communications and the Board has invited briefs from interested parties as to whether it should overturn Register Guard. Given that the NLRB has solicited briefing as to whether it should overrule Register Guard, it is likely that at the very least, there will be some modification to the Register Guard rule when the NLRB renders its decision in Purple Communications. Whether the Board adopts the General Counsel’s broad interpretation or issues a more narrow decision remains to be seen. In either event, the Board’s decision could have a major impact on an employer’s right to place restrictions on an employee’s use of the employer’s email system for non-business purposes.

For more information about these decisions and their implications, please contact any member of Schiff Hardin’s Labor & Employment Group.


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