On January 4, 2021, the National Labor Relations Board issued an opinion regarding union allegations that several provisions of a company’s employee handbook violated the National Labor Relations Act.[1]

As a reminder, the NLRA:

• Guarantees employees the right to engage in “concerted activities” for collective bargaining or other mutual aid or protection, which are collectively referred to as “protected activities” and
• Makes it unlawful for employers to restrain or coerce employees in exercising their rights. This includes maintaining work rules that reasonably tend to inhibit employees from exercising their rights.

Summary of Findings

A summary of the policies in question and the Board’s findings that followed are provided below:

1. Rule Prohibiting Employees from Conducting Personal Business on Company Time or Company Property

Finding – This policy restricts employees’ rights to engage in protected activities under the NLRA because the phrase “personal business” is broad enough to include protected union activities. The policy’s fatal flaw was its failure to acknowledge that employees are entitled under the law to engage in such activities during breaks and other non-working times, even if done on company property.

2. Rule Prohibiting “Inappropriate Communications”

Finding – Reasonable employees would understand “inappropriate communications” to understand the rule to infringe on their rights under the NLRA because of the extensive guidelines that follow in the policy (such as not disclosing confidential patient information) give context to the lawful and legitimate meaning of the phrase.

3. Rule Prohibiting Disclosure of Confidential Information Regarding the Company or Coworkers

Finding – When read as a whole, the rule would not reasonably be understood to prohibit the sharing of information about the terms and conditions of employment (protected activities). Examples of confidential information provided in the policy, such as trade secrets, imply that the policy is limited to the employer’s proprietary business information and does not interfere with employees’ rights under the NLRA.

4. Rule Prohibiting Using the Company’s Name to Endorse, Promote, Denigrate, or Otherwise Comment on Any Product, Opinion, Cause, or Person

Finding – An objective and reasonable employee would understand that this rule is aimed to prevent employees from speaking on behalf of the company rather than about the company.  Employers generally have the right to limit those who can speak for it without violating the NLRA.

5. Rule Prohibiting Posting Photos of Coworkers or Company Equipment Online Without Consent

Finding – A rule that essentially requires employees to be respectful of the privacy and dignity of coworkers is not unlawful. Further, the prohibition on posting pictures of company-owned equipment strongly implies that the purpose of the policy is to protect the company’s legitimate privacy issues.

6. Rule Prohibiting Sharing of Employee Compensation Information

Finding – This rule is only intended to apply when a third party telephones the company seeking information about employees’ compensation and does not restrict employees from discussing their compensation amongst themselves and with a union.

7. Rule Prohibiting the Use of Social Media to Disparage Company, Patients, Employees, etc.

Finding – Rules that prohibit employees from making disparaging statements about the employer to a third party are generally lawful. According to the NLRB, fundamental bonds and loyalties cannot adequately be protected if the employer is prohibited from having a policy against disloyalty and disparagement that is neutral on its face.

Final Thoughts

Though this opinion from the NLRB is viewed as a significant win for employers across the US, it is important always to remember one thing – the devil is still in the details. The Board carefully described each policy’s context and incorporated examples in the policy showing what would be considered company violations. As such, employers would be wise to evaluate their policies against this ruling on a deeper level past the blanket statements heading each policy to ensure that their company policies are truly in line with the NLRA as interpreted and enforced by the NLRB. 

About Employment Screening Services

Employment Screening Services (ESS) and Global HR Research (GHRR) are leading providers of employment screening services, including advanced data and health-related services such as background checks, drug testing, driving record checks, employment and education verifications, electronic employee eligibility verifications, and various industry-specific compliance and screening solutions. The combined companies serve more than 5,000 clients and delivers industry-leading technology solutions across key sectors, including healthcare, transportation, energy, education, manufacturing, restaurant, and staffing.

For help in implementing FCRA-compliant solutions for your background screening and drug testing program, visit us at www.es2.com, or contact one of our experts at solutions@es2.com.

This publication is provided only for educational purposes; it should not be relied upon as legal advice.  It should not be used, in whole or in part, as a basis for establishing employment practices or policies, nor should it be used to resolve disputes or managing risk. Every reader’s circumstances are unique and legal advice should be obtained only from a lawyer with whom the reader has established an attorney-client relationship. Copyright 2021 ©Employment Screening Services, LLC. All material contained within this publication is protected by copyright law and may not be reproduced without the express written consent of ESS.

[1] Medic Ambulance Service, Inc. and United Emergency Medical Services Workers, Local 4911, AFSCME, ALF-CIO. Case 20-CA-193784.