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Why It’s Important to Remember the Reason You Wrote Your Workplace Conduct Rules

To many unionized and non-unionized employers alike, it might appear that the National Labor Relations Board (“NLRB” or the “Board”) has it out for their handbooks and policy manuals. From social media policies to arbitration provisions to confidentiality of internal investigations, the Board has aggressively scrutinized employer policies under a standard that can make it very difficult for an employer to know which of its policies are proper and which are not. Given the lack of predictability in the Board’s decisions, it wouldn’t be surprising if some employers decide that having written policies on employee conduct in the workplace dealing with civility is simply not worth it, but some employers might feel that it’s worth fighting in order to press the Board for a more coherent rule.

The NLRB test—from the case Lutheran Heritage Village1—for policies on employee conduct is whether a workplace rule could reasonably be construed to discourage employees from engaging in concerted activities for employees’ mutual aid or protection, even when the rule has not been applied in an unlawful way. This standard can be a moving target, as a dissenting member of the Board recently pointed out in William Beaumont Hospital2, where the majority struck down several policy statements in a hospital’s handbook. The majority ordered policies that prohibited conduct that “impedes harmonious interaction,” behavior “counter to promoting teamwork,” and “negative or disparaging comments about the . . . professional capabilities” of employees, be revised as overbroad. The Board, however, found that a prohibition on “[b]ehavior that is rude, condescending or otherwise socially unacceptable,” among others, was lawful.

One level of the dissenter’s criticism is that the Board’s past decisions under the Lutheran Heritage Village standard are virtually impossible to harmonize with each other. The various rulings in this case itself show this—why is a prohibition on condescending and other socially unacceptable behavior lawful, while prohibiting behavior that is counter to teamwork unlawful? Further, the Board has previously found a policy prohibiting “conduct that does not support the . . . goals and objectives” of the employer to be lawful. What’s the difference between this language and the language regarding behavior counter to teamwork? Wouldn’t teamwork necessarily be a goal of almost every employer?

It would be hard to blame an employer that wants to simply get rid of written policies to avoid these issues altogether. After all, an overbroad policy could result in liability for terminating employees under the policy and even the possibility that a close union election resulting in a vote against unionization could be set aside. But the dissent in Williams Beaumont Hospital provides a roadmap to attack the Board’s law on this point by arguing that the Board and courts should balance the evidence of the employer’s legitimate justification for such policies against any potential adverse effect on an employee’s right to engage in concerted activity. With some forethought as to the justification, an employer might have a path to defend its policies, although it may take a Federal Circuit Court of Appeals decision to finally succeed in that effort.

Lutheran Heritage Village–Livonia, 343 N.L.R.B. 646 (2004)

2 363 N.L.R.B. No. 162, slip op. at 7-17 (2016) (Member Miscimarra, concurring in part and dissenting in part)

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.