Employers are not the only ones frustrated with the National Labor Relations Board’s ever-growing scrutiny of common employer work rules and policies. A member of the NLRB is, too.
As many employers are aware, the NLRB’s scrutiny of work rules has gone well beyond social media policies. In recent years, the NLRB has taken issue with many seemingly routine work rules and policies and found those polices to be unlawful. The policies found to be unlawful include policies regarding: confidentiality; conduct toward the employer and supervisors; conduct toward fellow employees; communications with third parties (including the media and government agencies); use of employer logos, copyrights, and trademarks; photographs, recordings, and personal electronic devices; leaving work; and conflicts of interest.
In particular, where the prohibitions and rules were not “properly” and/or “clearly” limited to unprotected activity, the NLRB has found otherwise facially-neutral rules unlawful if employees would reasonably understand them as prohibiting employees from engaging in protected activities or discussions regarding wages, benefits, or other terms and conditions of employment.
Recently, the NLRB issued yet another decision condemning an employer’s work rules. Specifically, the NLRB majority found that a hospital violated the National Labor Relations Act by maintaining rules in its Code of Conduct that: (1) prohibit conduct that “impedes harmonious interactions and relationships,” and (2) prohibit “negative or disparaging comments about the . . . professional capability of an employee or physician to employees, physicians, patients, or visitors.” The Board majority’s findings are consistent with the Board’s recent pattern of invalidating facially-neutral work rules on the premise that an employee would “reasonably construe” the rule to restrict the employee’s ability to engage in protected activities under the Act.
However, what is novel about the decision lies in the dissent. Commentators are buzzing about the dissenting opinion authored by Board member Philip Miscimarra, which called for a change in the way the Board evaluates employer policies and work rules.
Miscimarra identified multiple “defects” in the NLRB’s current test and called for a “more even-handed evaluation of employment policies, work rules and handbooks.” Rather than continue to apply the current test, he “believe[s] the Board must evaluate at least two things: (1) the potential adverse impact of the rule on NLRA-protected activity, and (ii) the legitimate justifications an employer may have for maintaining the rule,” and he called on his colleagues to “engage in a meaningful balancing of these competing interests.”
Of course, Miscimarra’s opinion is still the minority opinion. Employers should remain vigilant when drafting and enforcing their work rules to ensure they cannot reasonably be understood to infringe upon employees’ rights to engage in protected concerted activity. However, employers may take some comfort in knowing one member of the NLRB is sympathetic to their plight.