The National Labor Relations Board (NLRB) has struck again in the name of protecting employees’ speech rights.
We’re smack in the middle of a vicious cycle for employer policy making — the more the NLRB continues to broadly interpret the speech protections of the National Labor Relations Act (NLRA), the more labor charges it receives on the issue.
The result for employers: more communication policies are being tagged “illegal.”
On top of that, the NLRB’s rulings are binding for non-unionized employers as well as unionized shops. So everyone’s got to pay attention and heed its warnings.
What’s on the chopping block now?
The most recent policies to go through the NLRB’s shredder belonged to Casino Pauma, an Indian casino in Pauma Valley, CA.
After receiving a charge that the casino’s employee handbook contained overly broad rules, an NLRB administrative law judge struck down four of the casino’s policies.
- A rule against conducting personal business on casino property. Specifically, the part of the rule the NLRB had a problem with was the part that banned employees from being on casino property when they weren’t working. The judge said the rule “unlawfully restricts off-duty employees from engaging in protected activity [i.e., talking about working conditions]; and it prohibits protected activity during nonworking time.”
- A rule against solicitation and distribution. The rule banned all solicitation and distributions if the intended recipient expresses any discomfort or unreceptiveness. The judge said the rule was unlawful because it prohibited protected solicitation and distribution — i.e., talking about or distributing union materials.
- A rule requiring an online disclaimer. It required employees to use a company disclaimer if they posted content to any blog, website or social media site about work. The judge said the rule essentially hindered employees’ ability to participate in protected activity/speech. (Note: This was perhaps the least surprising of the smackdowns, since the NLRB had previously ruled against requiring employees to use similar disclaimers.)
- A rule to stop conflicts of interest. The rule required employees to receive the general manager’s written approval prior to soliciting employees, guests, suppliers or members from purchasing goods or services of any kind or to make contributions to any organizations, or to ask for support for any causes. The judge said the rule was unlawful because it required advance approval before employees could participate in protected solicitation.
Thankfully for employers like Casino Pauma, the NLRB doesn’t have the power to issue fines for these types of violations of the NLRA.
The most common consequences for employers with policies deemed illegal:
- rescinding such policies and rewriting them
- posting notices of the changes in a public location
- rescinding any disciplinary action against employees for violating those policies (including rehiring any terminated employees with back pay), and
- clearing the names of offending employees.
In Casino Pauma’s case, the NLRB required it to rescind the unlawful language in its policies and handbook and republish the handbook without it. The judge said the casino could satisfy this requirement by supplying employees with handbook inserts explaining the corrective measures.
Cite: Casino Pauma and Unite Here International Union