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Coastal Industries, a Jacksonville, Florida employer, thought it had an employee handbook that was compliant with the dictates of the National Labor Relations Board (NLRB). After a NLRB review of its handbook, however, it got a rude awakening. Remember, the NLRB can find workplace policies to be unfair labor practices at both union and nonunion companies alike.

Within the last couple of years, the NLRB has begun using a test, called the Boeing test, which places workplace policies in one of three categories: (1) lawful, (2) unlawful, or (3) it depends. In reviewing the “it depends” policies, the NLRB will look at both the impact the policy has upon expression covered by Section 7 of the National Labor Relations Act (NLRA) (which protects what is known as “concerted activity”) as well as whether the employer has a good business reason for creating the rule.

The NLRB’s review of Coastal’s policies can be a useful reference tool for employers to rely upon as they create and evaluate their own policies and try to avoid running afoul of the NLRA.

The NLRB’s Office of General Counsel, Division of Advice, examined a total of eleven different policies in Coastal’s handbook. The entire memorandum can be found here. What follows is just a sampling of the policies reviewed, along with an explanation for the findings in the NLRB’s Division memorandum.

The NLRB reviewed a confidentiality policy in Coastal’s employee handbook which stated that:

…all information gathered by, retained or generated by the Company is confidential.  There shall be no disclosure of any confidential information to anyone outside the Company without the appropriate authorization … nothing in this policy is intended to infringe upon employee rights under Section Seven (7) of the National Labor Relations Act (NLRA).

The last sentence is what is known as a “savings clause” as it is intended to eliminate any doubt as to whether the policy is intended to violate the law. Unfortunately for Coastal, however, the savings clause did not save this policy—the NLRB determined that a policy declaring all information to be confidential is unlawfully overbroad. The reason is that it could be interpreted to prohibit discussing such things as employee wages and terms and conditions of employment, which are protected employee rights. The NLRB found it “hard to fathom how any [such] activity could be conducted without employees disclosing or discussing ‘company business’ in some manner.” On the other hand, Coastal also had a policy prohibiting “obtaining unauthorized confidential information pertaining to clients or employees.” The NLRB found this to be lawful. The restriction was reasonable and its language could not be reasonably perceived to prohibit protected concerted activity.

The NLRB found that a policy prohibiting employees from posting derogatory information on social media about the Company to be unlawfully overbroad. The NLRB was concerned that it could chill protected employee activity because it could be interpreted to apply to criticism about wages or terms and conditions of employment. Yet, the NLRB found a somewhat similar policy prohibiting posting of disparaging statements about fellow employees to be a lawful rule, serving to promote civility in the workplace.

The NLRB concluded that an absolute ban on personal use of cell phones/mobile devices during working hours was unlawful. However, it also found to be lawful a rule prohibiting employees from using “Company electronic assets” to access social media accounts.

A previous decision from the NLRB found it unlawful for employers to restrict employees from accessing email when it is being used to send/receive communications regarding wages, hours of work or other terms or conditions of employment. The employees challenging Coastal’s policies were hoping that access to social media would be covered by this rule.  The NLRB, however, was unwilling to expand the email rule to allow for unlimited social media access on an employer’s computers.

The NLRB has consistently stated that general civility rules requiring “harmonious relationships” in the workplace are legal. It continued that trend with its review of Coastal’s policies, stating that “[w]hile protected concerted activity may involve criticism of fellow employees or supervisors, the requirement that such criticism remain civil does not unduly burden the core right to criticize.”

The takeaway for employers from this NLRB memorandum is that it is permissible to create policies which maintain civility and confidentiality in the workplace. But, these policies can easily go too far once they place actual or perceived restrictions on discussion or criticism of terms and conditions of employment.  If this happens, the NLRB will find these policies to be unlawful every time.