Legal Alert

NLRB on Handbook Rules: Do’s and Don’ts

by Brian D. Pedrow and Anu Susan Thomas
January 11, 2021

Summary

The National Labor Relations Board recently reversed decisions that found rules in an employer’s handbook violated the National Labor Relations Act. The Board also determined parts of the employer’s handbook did violate the NLRA. The ruling was rare for the Trump administration in that the decision wasn’t entirely in favor of employer interests.

The Upshot

  • In the decision, the Board reversed a number of the administrative law judge’s holdings that found a California ambulance company violated the NLRA through unlawful handbook rules and policies that restricted protected, concerted activity.
  • The Board also held that the company violated the NLRA by maintaining handbook rules that prohibited soliciting or distributing literature during working hours and prohibited conducting personal business on company time or property.
  • The decision will be added to the Boeing progeny, which sets the standards for evaluating the legality of handbook rules and policies.

The Bottom Line

This decision serves as a useful roadmap for employers when drafting and reviewing handbook rules and policies. It includes pitfalls to avoid as well as acceptable practices and language for workplace rules. It cautions employers to employ careful drafting necessary to maintain rules and policies that are legal and enforceable.

In its recent decision, Medic Ambulance Services, Inc.,the National Labor Relations Board (NLRB or Board) added another decision to the Boeing progeny, which sets standards for evaluating the legality of handbook rules and policies. The Board reversed a number of the administrative law judge’s (ALJ’s) holdings which found that the employer, a California ambulance company, violated the National Labor Relations Act (NLRA) through unlawful handbook rules and policies that restricted protected, concerted activity.

In a rare ruling during the Trump Administration not entirely in favor of employer interests, the Board also held that the company violated Section 8(a)(1) by maintaining handbook rules that prohibited soliciting or distributing literature during working hours and conducting personal business on company time or property.

Social Media Rule Held Lawful

The Board upheld the employer’s social media policy, reversing the ALJ’s ruling, finding that rules prohibiting inappropriate communications, disclosure of confidential information, and use of the company’s name to disparage people, or post photos of coworkers, were lawful. The Board found, on balance, that these rules based on their language and context would not be reasonably construed to limit protected, concerted activity. Further, the Board reversed findings that the employer unlawfully maintained rules prohibiting the sharing of employee compensation information.

This decision is altogether a good lesson on drafting for employers and serves as a useful guide for reviewing the legality of company handbook rules and policies—at least for now before the Biden Labor Board begins issuing decisions which may reverse course on protected, concerted activity cases.

Non-Solicitation/Non-Distribution Rules Held Unlawful

The Board simply adopted the portions of the ALJ’s decision holding that the employer’s non-solicitation/non-distribution rules unlawfully restricted protected, concerted activity, dropping a footnote that referenced both Boeing and UPMC Presbyterian and stating that the standard surrounding these rules already strikes a good balance between employee rights and employer interests.

At issue was a handbook rule that prohibited employees from “solicitation or distribution of literature for any purpose during working hours without prior authorization from management.” According to the ALJ, such a rule violated the NLRA as overly broad and presumptively invalid, since it would reasonably be construed as prohibiting such conduct during break times or periods when employees were not actually working. The ALJ reiterated the longstanding precedent that solicitation, which includes union activity, cannot be banned during non-working areas in non-working times, or restricted in working areas during non-working time.

Similarly, a rule prohibiting distribution of union literature during non-working hours in non-working areas is presumptively unlawful. The ALJ held that the language of the employer’s rule did not sufficiently make employee rights clear, and the Board agreed. The ALJ further opined that requiring management approval of an employee’s solicitation or distribution is coercive and also unlawful, citing NLRB precedent that any rule that requires employees to secure permission before engaging in protected, concerted activity in an employee’s free time in non-work areas is unlawful.

Conducting Personal Business on Company Time or Property Held Unlawful

Similarly, the employer’s rule against “conducting personal business on company time or company property for any purpose during working hours without prior authorization from management,” was overly broad. The ALJ held, and the Board agreed, that to the extent the rule failed to clarify that the restrictions do not apply during non-working time and in non-working areas, such as the break room, kitchen, backyard and parking lot, the rule could be construed to ban protected, concerted activity.

The ALJ also concluded that the employer’s justification for the rule, which included preventing employees from selling items at work and protecting employees from being solicited for things that were not work-related, did not outweigh the significant potential impact of the rules on substantial Section 7 rights, including union organizing.

Listen to the Business Better podcast episode where our lawyers discuss what the Biden-Harris administration may mean for employers

 

Copyright © 2021 by Ballard Spahr LLP.
www.ballardspahr.com
(No claim to original U.S. government material.)

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, including electronic, mechanical, photocopying, recording, or otherwise, without prior written permission of the author and publisher.

This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.

Subscribe to Ballard Spahr Mailing Lists

Get the latest significant legal alerts, news, webinars, and insights that affect your industry. 
Subscribe