As attorneys we often advise clients to continually review and revise their employee handbooks. One of the reasons why is that what appears to be innocent language ends up costing employers money due to a capricious decision of the National Labor Relations Board (“NLRB”). In recent years, the NLRB has issued decisions punishing employers for encouraging employees to be civil in their social media posts and for preventing employees from making unauthorized audio recordings in the workplace; in those instances the NLRB found that such policies infringed on employees’ protected speech regarding union activities and labor disputes. The NLRB has taken another step toward the absurd with a new decision finding an employer violated the National Labor Relations Act (“the Act”) by using language which encouraged employees to maintain a positive workplace.
The decision involved communications company T-Mobile. T-Mobile’s employee handbook contained a workplace conduct policy which stated: “Employees are expected to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with clients, co-workers and management.” The NLRB found the provision violated the Act because such language is vague and could reasonably be construed to chill employees from engaging in communication regarding union activity. Specifically, the board found that because labor disputes and union organizing efforts may result in less-than-positive statements about the employment environment, T-Mobile’s employees would be hesitant to engage in such activities out of fear of violating T-Mobile’s rule.
This decision will potentially lead to a spate of NLRB complaints about employee handbooks containing what has come to be common language and policies. Employers should be hesitant to utilize language advocating for employees to be positive in their communications, and instead should consider policies which prohibit acts of insubordination or conduct that interferes with client relations.
It is important for employers to be mindful that they may be subject to NLRB oversight even if they are not currently a union employer. As such, employers should make sure that their handbooks do not violate the NLRB’s decision and periodically conduct a legal review of their handbooks so that appropriate revisions may be implemented. If you have questions about the new decision and how it may affect you, please contact Wickens, Herzer, Panza, Cook & Batista.