Over the past three years, we have reported on how the NLRB has focused on numerous employer policies and practices that it found to be unlawfully overbroad. The NLRB reasoned that the overbroad policies could lead an employee to reasonably conclude that the employer’s policy or practice interfered with the employee’s protected right to engage in concerted activities in support of a union or that involve wages, hours and working conditions. In the past, cases decided by the NLRB have involved particular policies dealing with social media, confidentiality of personnel information, use of company e-mail systems and employment-at-will acknowledgments.
Overbroad Handbook Provisions Under Attack
Now, in a settlement of a pending unfair labor practice charge against GCA Services Group, a national janitorial services company, the NLRB has indicated that almost any private employer’s employee handbook would be open to attack as being overbroad in many very common areas. Although the settlement does not carry the force of law and is not of precedential value in future cases, it does represent the types of handbook policies that the NLRB will challenge and proceed to litigate if a settlement is not reached.
The settlement identifies 11 specific handbook provisions that are deemed to be unlawfully overbroad. The settlement agreement requires the employer to rescind each of the provisions and advise its employees that the provisions are rescinded and that provisions will not be enforced. The settlement agreement doesn’t explain exactly which sentences or phrases in otherwise lawful policies are unlawful. Rather, in most instances, the settlement calls for the wholesale rescission of entire policy statements. So, employers and their advisors are left to make their best guesses as to exactly what language is lawful and what is not.
The “Unlawful” Handbook Provisions
Below is a summary of the “unlawful” policy statements that the employer agreed to rescind in the settlement. The most likely provisions – in our view – that were deemed as being unlawfully overbroad are highlighted below together with our comments:
- Confidential Information. All information concerning Company and/or customer business must be held in strict confidence and must not be discussed with anyone other than those Company employees who need the information in the performance of their work. Due to the sensitive nature of information present within our customers’ facilities, it is of the utmost importance you observe strict confidentiality regarding information learned as you perform your job. Confidential, proprietary, and private information about GCA Services Group, employees, and customers is intended for use within the scope of your job at the facility. A breach of confidentiality may be cause for disciplinary action, up to and including termination.[COMMENT: Probably overbroad because “confidential” is not defined. Employees are permitted to discuss wages, benefits, identities, job descriptions and other conditions of employment and even most internal investigations with other employees and others, including unions, outside the company.]
- Employment Record Access. Your employment record is considered confidential and includes your resume, benefit selections, performance reviews, employment history, and other employment information. Personnel files are the property of GCA and access to the information contained therein is restricted in accordance with state and/or federal law.[COMMENT: Just as above, probably overbroad because “confidential” is not defined. Employees are permitted to discuss wages, benefits, identities, job descriptions and other conditions of employment with other employees and others, including unions, outside the company.]
- Non-Harassment. When a report of discriminatory harassment is made as specified above, the Human Resources Department will ensure a prompt investigation as deemed appropriate under the circumstances. The steps to be taken during the investigation cannot be fixed in advance, but will vary depending upon the nature of the allegations. Confidentiality will be maintained throughout the investigative process to the extent practicable and consistent with the Company’s need to undertake a full investigation.[COMMENT: Probably overbroad because recent NLRB cases suggest that an employer cannot require that investigations be confidential unless certain conditions require confidentiality. Those conditions were not set out in the policy.]
- Company Work Rules and Regulations. Employees have a responsibility to perform their assigned job in a satisfactory and conscientious manner and to conduct themselves according to reasonable standards of conduct. Below is a list of standards to guide employee conduct while at work.
- Major Offenses (may result in immediate discharge)
- Breach of Trust-Failure to Maintain Confidentiality.[COMMENT: Probably overbroad because “trust” and “confidentiality” are not defined. Employees are permitted to discuss wages, benefits, identities, job descriptions and other conditions of employment and even most internal investigations with other employees and others, including unions, outside the company.]
- Minor Offenses (infractions generally requiring progressive discipline)
- Leaving Work Area or the Property Without Authorization.[COMMENT: Probably overbroad because employees have a protected right to “strike” by walking off the job in support of issues common to employees in general. To discipline or discharge for engaging in a protected “strike” would be an unfair labor practice. The employer’s remedy is to permanently replace the “striker”.]
- Loafing or Loitering on the Job.[COMMENT: Probably overbroad because “loitering” as it is defined in a policy that follows, below, is overbroad in that it prevents employees from leaving the job without a supervisor’s permission.]
- Conducting Oneself in a Disorderly or Offensive Manner; Engaging in Horseplay.[COMMENT: Probably overbroad because “disorderly or offensive manner” is not defined. Employees are permitted to discuss wages, benefits and other conditions of employment with other employees and others outside the company, including unions, so long as there are no threats of violence.]
- Major Offenses (may result in immediate discharge)
- Use of Communication Systems. The Company’s communication systems shall not be used as a forum to promote political or religious causes or to solicit or proselytize for commercial ventures, outside organizations, or other non-job-related solicitations, or any illegal activity. The Company also prohibits offensive or improper messages or opinions: transmission of sexually explicit images, messages, cartoons, or other such items; or messages that may be construed as harassment or disparagement of others based on race, national origin, sex, sexual orientation, marital status, age, disability, religion, veteran status, genetic information or any other protected category on the Company’s communication systems. Any violation of these guidelines may result in disciplinary action, up to and including termination.[COMMENT: Probably overbroad because an employee may believe that a union is an “outside organization” that can’t be the subject of a solicitation. Further, “offensive or improper messages or opinions” might be interpreted to prevent communications supporting unions that might be offensive to management.
- Work Conditions No-Solicitation and No-Distribution Rule. Because of the need to maintain an atmosphere conducive to our goals of high quality service and employee productivity, the Company has adopted this policy with regard to solicitations and distributions on the jobsite, regardless of whether the jobsite is on Company property or property of our customer. You, as an employee, are not permitted to solicit employees in work areas during work time. You are also not permitted to distribute non-Company material to employees in work areas on work time or on non-work time. The Company’s e-mail system is not be used for non-job related solicitations.[COMMENT: Probably overbroad because an employee could understand that solicitation and distribution prohibitions will be discriminatorily enforced.]
- Loitering. To prevent interruption of the work schedules of others, you are expected to leave the work area immediately following completion of your working hours. Whether you may remain in nonworking areas depends upon the laws and regulations which apply to your particular worksite. However, you must not leave your workstation before your shift ends without the permission of your supervisor. The practice of having children or other members of your family or friends waiting for you at the jobsite or areas other than public waiting rooms is against Company policy.[COMMENT: Probably overbroad because employees have a protected right to “strike” by walking off the job in support of issues common to employees in general. To discipline or discharge for engaging in a protected “strike” would be an unfair labor practice. The employer’s remedy is to permanently replace the “striker”.]
What This Settlement Means to Private Employers
It is very apparent from this official settlement and from many of the other recent case decisions and pronouncements of the NLRB’s general counsel that any private employer policy that could be stretched to interfere with protected concerted activity will be challenged. It seems that almost any policy could be stretched to the point that the lawfulness or unlawfulness of the policy will turn on the subjective eye of the beholder. There are few if any bright lines to guide well-meaning employers in establishing and enforcing policies that seem to reasonably ensure an orderly and respectful workplace. It may seem odd, but even the use of the terms “orderly” and “respectful” could now be challenged as being “overbroad.”
Employers should consider reviewing policies and handbooks for phrases that could be seen as overbroad. If overbroad phrases are discovered, consider adding helpful examples to clarify the meaning. Finally, consider adding a disclaimer in appropriate places in the policy statement and in the handbook that indicates that employees do have the right to discuss wages, hours and working conditions free of employer interference.
Should you have questions, please contact your regular Hall Render attorney or a member of our Employment and Labor Section:
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Michael Kim mkim@HallRender.com
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Larry Jensen ljensen@HallRender.com
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Jon Bumgarner jbumgarn@HallRender.com
Kevin Stella kastella@HallRender.com
Dana Stutzman dstutzma@HallRender.com
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Jennifer Richter jrichter@HallRender.com
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Mary Kate Liffrig mliffrig@HallRender.com
Brad Taormina btaormina@HallRender.com
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