For many employers, the arduous task of reviewing and revising an employee handbook may occur as infrequently as every leap year, or worse, only after a law suit has been filed. However, recent decisions by the National Labor Relations Board (Board) should cause employers to take a much closer look at their employee policies and the frequency with which they update them. Technological advances and changes have created new arenas for protected “concerted activity” under Section 7 of the National Labor Relations Act (Act) and have caused the Board to take a closer look at employer policies that may violate the Act.
For example, in the recent Board decision, Chipotle Services, LLC, 364 NLRB No. 72, the Board considered whether several of Chipotle’s employee policies violated Section 7 of the Act by constraining employees’ ability to engage in protected concerted activity. The matter originated from Chipotle’s response to a series of tweets by an employee on his Twitter account regarding the working conditions of Chipotle employees, as well as the employee’s efforts to solicit employee signatures on a petition concerning break periods. The employee complied with Chipotle’s request to take the tweets off of his Twitter account because they violated Chipotle’s social media policy. But, the employee was ultimately fired for insubordination after having a meeting with his manager where he was asked to stop soliciting signatures for a petition regarding employee break periods.
In her decision, the administrative law judge not only considered the legality of Chipotle’s social media and solicitation policies, but she also considered its policies regarding confidential information, ethical communications, and political/religious activity and contributions. The judge found certain portions of each policy, and the employee’s termination, to be unlawful. In finding Chipotle’s employee policies unlawful, the judge reasoned that, despite the absence of a specific prohibition of Section 7 activity, the employees could reasonably construe portions of the policies to restrict the exercise of Section 7 activity. The Board affirmed the judge’s findings and ordered Chipotle to rescind the employee policies in question and reinstate the terminated employee, with back pay.
When looking at Chipotle’s social media policy, the judge found the prohibition on making “disparaging, false or misleading statements about or relating to Chipotle, our employees, suppliers, customers, competition or investors” to be unlawful, despite the savings clause that Chipotle added at the end of the policy. Regarding Chipotle’s solicitation policy, the judge found the prohibition of solicitation during nonworking time to be unlawful because it encompassed situations that would have no impact on business or interrupt sales. Chipotle’s confidential information policy was found to be unlawful because it barred employees from using Chipotle’s name. The judge held that Chipotle has the right to prohibit “colorful language,” which could be considered vulgar, rude or offensive, however, the judge found Chipotle’s ethical communications policy unlawful because it prohibited communications that were exaggerations, guess work and derogatory characterizations of people. Finally, the judge found Chipotle’s political/religious activity policy to be unlawful because the exercise of Section 7 rights often involves political activity such as the discussion of legislation aimed at improving wages or employee working conditions.
For many employers the Board’s decision in Chipotle may be disheartening given that Chipotle’s policies were found unlawful even though they prohibited ostensibly bad conduct that could damage Chipotle’s business and brand. However, from this decision, employers should take away the strong warning that there is danger in drafting overly broad employee policies. Employers should be specific about what conduct is allowed and what conduct is prohibited, and define terms wherever possible. In the Chipotle decision, as in previous decisions, the Board makes clear that broad prohibitions of providing misleading information or of rude and inappropriate conduct will be found unlawful because employees have the right to protected concerted criticism of their employer, so long as there is no malicious conduct. Employees also have a right to engage in protected concerted activity during nonworking time so long as that activity does not interfere with business operations. An employer cannot rely on a savings clause in its policies to escape a violation of the Act. Only a narrowly tailored policy which takes into account protected and unprotected conduct may avoid scrutiny.
In the Chipotle decision, the Board took the opportunity to address the legality of several policies that had no bearing on the issue of the employee’s termination. From this, employers should take note of the Board’s willingness to examine the legality of all employee policies and not just those called into question by the filing of an unfair labor practice charge. Therefore, employers should regularly take the time to review, and revise where needed, their employee handbooks and policies to ensure compliance with the law.