03/03/2015

Prohibiting The Prohibition Of Disrespectful Conduct: An Encore To Our Masters Series

During our Masters Series presentation in April, we addressed the National Labor Relations Board’s (NLRB) General Counsel’s memorandum relating to conduct policies. In the memorandum, the General Counsel contended that certain policies, including what appeared to be standard handbook provisions, violate employees’ rights to engage in protected concerted activity under Section 7 of the National Labor Relations Act (NLRA). Concerted activity generally is two or more employees discussing or taking action with regard to terms and conditions of work or even one employee taking action on a matter involving terms or conditions of employment.

A number of the policies contained in the memorandum and addressed in our presentation likely left several employers scratching their heads. As an example, according  to the General Counsel, the following prohibition violates the NLRA:

• Disrespectful conduct or insubordination, including, but not limited to, refusing to follow orders from a supervisor or a designated representative.

In contrast, according to the General Counsel, this prohibition is lawful:

• Being insubordinate, threatening, intimidating, disrespectful, or assaulting a manager/supervisor, coworker, customer, or vendor will result in discipline.

The difference, according to the General Counsel, is that “[a]lthough a ban on being ‘disrespectful’ to management, by itself, would ordinarily be found to chill Section 7 criticism of the employer, the term [in the second, lawful policy] is contained in a larger provision that is clearly focused on serious misconduct, like insubordination, threats and assault.” The General Counsel came to this conclusion despite the obvious similarities of these rules, including the inclusion of “insubordination,” which employers are undoubtedly allowed to prohibit.

In light of this recent “guidance” from the NLRB, employers should keep the following in mind:

• The lawfulness of the policies in the guidance is the opinion of the General Counsel and has not been tested in the Courts or decided directly by the National Labor Relations Board. Given proper legal analysis, many of the General Counsel’s opinions could and should be rejected.
• Context and placement of policies in the handbook matter. The General Counsel repeatedly indicated in the memorandum that the lawfulness of the examined policies would be decided in context with the material around it. While the wording of a policy may be unlawful standing alone, it could be lawful given the context and surrounding material. For example, a policy prohibiting harassing or disparaging comments may be lawful if it was contained within the handbook’s discrimination and harassment policy.
• If no employee is terminated, the penalty is low for maintaining an unlawful policy. Absent an employee termination as a result of an unlawful rule, if an employer is found to have an unlawful policy in its handbook, the employer will likely only be required to change or delete the policy and post a notice to employees informing them or their rights under the NLRB for 60 days. If an employee is terminated; however, the employer will likely be required to reinstate the employee with backpay.
• While it is remarkable that the General Counsel continues to strike down long-used policies designed to maintain workplace order by claiming that the employees would reasonably believe the policies infringe on their rights to unionize and engage in protected concerted activity, the memorandum is helpful in that it provides examples considered to be lawful by the General Counsel to use in handbooks. In light of the General counsel’s tirade against standard policies, it is important to work with knowledgeable counsel when auditing or creating policies and handbooks.