In T-Mobile USA, Inc. and MetroPCS Communications, Inc., 363 NLRB No. 171 (April 29, 2016), the National Labor Relations Board (“NLRB”) held that certain provisions in the employers’ handbooks violated the National Labor Relations Act (“NLRA”). The NLRA protects employees who engage in protected, concerted activity. Such activity can take many forms. Employers who have policies prohibiting protected, concerted activity violate the NLRA. In this case, the provisions found to be in violation included the following:

1.    [The Respondent] expects all employees to behave in a professional manner that promotes efficiency, productivity, and cooperation. Employees are expected to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers, and management.

2.   To prevent harassment, maintain individual privacy, encourage open communication, and protect confidential information employees are prohibited from recording people or confidential information using cameras, camera phones/devices, or recording devices (audio or video) in the workplace. Apart from customer calls that are recorded for quality purposes, employees may not tape or otherwise make sound recordings of work-related or workplace discussions. Exceptions may be granted when participating in an authorized TMUS activity or with permission from an employee’s Manager, HR Business Partner, or the Legal Department. If an exception is granted, employees may not take a picture, audiotape, or videotape others in the workplace without the prior notification of all participants.

The NLRB noted that a rule violates the NLRA if: (1) it explicitly restricts activities protected by the NLRA; (2) it was promulgated in response to union activity; (3) it has been applied to restrict employees’ exercise of rights under the NLRA; or (4) employees would reasonably construe the language of the rule to prohibit protected activity.

Here, the NLRB held that the only provision that might apply here is whether the employees would reasonably construe the language to prohibit Section 7 activity. Thus, the NLRB found that “undefined” phrases like “positive work environment” and “communicating in a manner that is conducive to effective working relationships” are ambiguous and vague. Therefore, the NLRB found that employees would reasonably construe the rule to restrict potentially controversial or contentious communications, including those protected by the NLRA, because such conversations would not be conducive to a positive work environment.

The NLRB noted that earlier cases had held that similar handbook language did not violate the NLRA. For example, a rule that prohibited “insubordination to a manager or lack of respect and cooperation with fellow employees or guests,” including “displaying a negative attitude that is disruptive to other staff or has a negative impact on guests” had been found not to violate the NLRA. The NLRB distinguished that case by stating that the rules at issue here were much broader. The NLRB stated that employees would read the rules in conjunction with other work rules, and would be chilled from a range of potentially controversial conversations protected by the NLRA.

With respect to the second policy, the NLRB held that a blanket prohibition on recording in the workplace, even if the stated interest is prohibiting harassment or protecting trade secrets, also violates the NLRA. The NLRB held that broad prohibitions against recording on an employee’s own time and in nonwork areas violated rights under the NLRA, because such recordings could be made by employees acting in concert for mutual aid with no overriding employer interest.

The NLRB held that the fact that the employer’s intent was not to restrict NLRA-protected activity did not matter. While the employer stated the rule was to protect confidential information, the employer’s definition of “confidential” included wage information as well as employee contact information, none of which may be considered confidential under the NLRA. The NLRB also held that the employer’s interest in preventing harassment was unavailing, because the rule was not narrowly tailored to this interest. The NLRB noted that the rule did not cite laws regarding workplace harassment and also did not specify that the restriction was limited to recordings that could constitute unlawful harassment.

What Does This Mean For You? Even if your workplace is not unionized, it is probably covered by the NLRA. Accordingly, employers need to ensure that handbook provisions do not violate employee rights under the NLRA. This is a dynamic area because the NLRB is taking a very aggressive position with respect to the language it believes may chill employees from exercising their rights under the NLRA. You should review your employee handbooks for broad, general language that is not narrowly tailored to a business purpose or that does not provide specific examples for employees to assist them to understand the handbook provisions.  We recommend that you work with counsel who is aware of the NLRB handbook restrictions when crafting your policies.

If you have any questions about this or any other employment or labor law issue, please contact Whitney Rahman at (717) 509-7237 or swr@blakingerthomas.com.