Don't Get Ensnared
Some of this year's Most Powerful Employment Attorneys say the National Labor Relations Board's strict, employee-friendly interpretation of the law means employers must be very careful in what they say and do.
By Andrew R. McIlvaine
Herman Perez had apparently had enough. Robert McSweeney, Perez's supervisor at Pier Sixty, the New York-based catering company where he worked, had just chided employees for "chit-chatting" at a catered fund-raising event where guests were beginning to arrive.
"Spread out, move, move!" McSweeney allegedly yelled at a group of employees, including Perez, waving his arms.
Shortly thereafter, Perez went outside and used his iPhone to post an expletive-laden rant to his Facebook page (visible to a friend network that included at least 10 Pier Sixty co-workers) referencing McSweeney and his family. He concluded his post with "Vote YES for the UNION!!!!!"
As it happened, employees at Pier Sixty were -- at that time -- the focus of a 2011 organizing campaign by a union hoping to represent them. Two days after Perez's profane post, the employees voted for union representation. Perez deleted his post shortly thereafter, but it had already been reported to company management, who conducted an investigation and subsequently fired Perez for violating the firm's anti-harassment policy.
Did Pier Sixty act lawfully in terminating Perez? Not according to the National Labor Relations Board. In late March, the board upheld an earlier ruling by an administrative law judge who'd found that Perez's firing violated his rights under the National Labor Relations Act.
In its 2-to-1 ruling, the NLRB said that, although Perez's posting was "distasteful," it "reflected his exasperated frustration and stress after months of concertedly protesting disrespectful treatment by managers -- activity protected by the act."
Although a ruling in favor of an employee whose rant had included a vulgar reference to his supervisor's mother might surprise some, to critics of the agency, it fits perfectly with what they say is a pattern of blatantly pro-union NLRB rulings. They cite, as further evidence, a 30-page memo on employee-handbook policies -- released earlier this spring by NLRB General Counsel Richard Griffin -- that management attorneys describe as "excessive" in its restrictions on what companies can and can't say.
"The board's approach, and the general counsel's, has really grown -- the scope of what they say an employer cannot do has just expanded significantly over the last seven years," says Harriet Cooperman, co-chair of the labor, employment and employee-benefits practice at Saul Ewing in Baltimore, and a member of this year's Most Powerful Employment Attorneys list (which includes top 100 attorneys, specialists in specific areas, up-and-comers and this year's inductees to the Most Powerful Employment Attorneys Hall of Fame).
Griffin's memo, in particular, "made a lot of management lawyers shake their heads," she says.
However, in a written statement accompanying the memo, Griffin said his office "continues to receive meritorious charges alleging unlawful handbook rules."
The memo, he wrote, is intended to "offer guidance on my views of this evolving area of labor law, with the hope that it will help employers to review their handbooks, and conform them, if necessary, to ensure that they are lawful."
Many employment lawyers criticize the current NLRB for what they say is a pro-union bias.
"The NLRA itself is designed to protect employees, not unions, but we're seeing some decisions that are decidedly pro-union," says Charles Caulkins, managing partner at Fisher & Phillips in Fort Lauderdale, Fla., and another member of this year's list.
Still, the NLRB and controversy have gone together for quite some time, he adds.
"The NLRB is probably the most politicized of the federal agencies," says Caulkins. Given that three out of the five board members are typically members of the president's political party, the board's rulings tend to reflect that party's philosophy. Under President Reagan, who campaigned against what he saw as excessive government regulation, the NLRB was seen as overtly pro-business. Under President Obama, who enjoyed near-100-percent support from organized labor during his campaigns, the agency is regarded as markedly pro-union.
"To the victors go the spoils," Caulkins says.
What HR leaders must understand -- and too many do not, say members of this year's Most Powerful Employment Attorneys list and other legal experts -- is that the NLRA applies to all companies, regardless of whether or not they're unionized. In particular, they must keep in mind that Section 7 of the law, which addresses employees' rights to engage in concerted activities, extends to union and non-union employees.
Even companies that are aware of the law's reach may be unclear about the specifics of what they can and can't do, says Cooperman. This can prove especially problematic when it comes to rules pertaining to employee behavior in the workplace and on social media.
"Many non-unionized companies, when they hear 'NLRA' or 'NLRB,' will automatically tune out," says Joseph Baumgarten, co-chair of the labor and employment law department at Proskauer and another member of this year's list. "That's a huge mistake."
The Handbook Factor
Even employee-conduct policies that seem to be relatively straightforward and innocuous may violate the NLRA. The case of Hills and Dales General Hospital serves as a good example.
The Cass City, Mich.-based hospital had revised its employee-conduct policy several years ago in an effort to improve its reputation and foster a more positive work environment. Among other things, the new policy forbade employees from making negative comments about their colleagues and stated that employees should "represent [the employer] in the community in a positive and professional manner."
However, in its ruling last April, the NLRB found those two provisions "overbroad and ambiguous in their own terms." Employees could potentially view the provision requiring them to represent the hospital in a "positive and professional manner" as proscribing them from speaking out on work-related matters, the board said.
Concerted activity does not depend on the existence of a union, says Baumgarten. Instead, it's when two or more employees act together for mutual aid and protection -- with or without the presence of a union. And the NLRB has an expansive definition of what constitutes a threat to those rights, he says.
"The NLRB has taken a very aggressive approach to things that, on their face, you would think have absolutely nothing to do with concerted activity -- they've construed [these actions] as unlawful," Baumgarten says.
Griffin's memo on employee handbooks delves further into the sorts of policies the board may consider unlawful. Confidentiality policies, for example, could be viewed by employees as limiting their ability to discuss wages, hours and working conditions. Restrictions on the use of social media and mobile devices in the workplace can have a chilling effect on employees who wish to exercise their rights, and so do prohibitions on their use of company logos, insignia and trademarks.
Even policies that prohibit employees from engaging in "rude, disrespectful or inappropriate" behavior toward management while on duty will be found unlawful unless they are further clarified, the report says, as will policies that govern employees' behavior toward their co-workers if such policies are seen as impinging on their rights under the NLRA.
In order to stay out of trouble, experts say, the best approach may be to ensure that handbook policies include specific examples of prohibited behavior and provide context whenever possible.
Even disclaimers may not be enough to protect the company, says Cooperman.
"Sometimes you'll see a disclaimer that a particular rule is 'not intended to interfere with Section 7 rights' -- I don't think this is good enough, because most employees won't know what 'Section 7 rights' are," she says.
Her advice is to be frank: " 'Nothing in this rule should prohibit employees from discussing wages or conditions of employment or raising complaints.' "
Cooperman suggests approaching the drafting of a handbook much like that of a contract: Continually ask yourself whether anything could be misconstrued as interfering with employees' Section 7 rights, and avoid overly broad, ambiguous or vague language.
" 'Don't act disrespectfully' -- well, what does that mean?" she says. "The rules should, to the extent possible, put it in context."
Offensive language is all about context -- workplace decorum varies considerably between, say, a law firm and a construction site, says Caulkins. HR needs to remember this when crafting policies and investigating complaints of insubordinate behavior, and consider the subject of the discussion involved: For example, was the flare-up about wages, hours or working conditions? If so, it may fall under the NLRA.
"One of the hardest things for companies to understand is that this right to complain or say negative things can involve some passion and profanity -- there's going to be some table-pounding and salty language, and the NLRB isn't going to allow you to use it as an excuse to tamp down employees' right[s] to complain about their boss[es] or working conditions," says David Baffa, chair of the workplace-compliance-solutions group at Chicago-based Seyfarth Shaw.
With respect to the Pier Sixty ruling, Cooperman and others note that the company was found to have regularly tolerated foul and abusive language by managers and employees in the workplace. In terminating Perez, they say, management appeared to have possibly singled him out for engaging in protected activity.
The "Giant Water Cooler"
Confidentiality policies should also be written as specifically as possible, says Elise Bloom, a partner at Proskauer and a member of this year's list. "Ensure you've tailored them in such a way that you're protecting the information you really want to protect," she says, adding that this can include customer and client lists.
Having a separate, more-restrictive confidentiality policy for high-level executives may also better serve the company's interests, considering that they tend to have more access to this level of information and such a policy would be less likely to be seen as impinging on Section 7 rights, she says.
When deciding what to include in handbooks, "less is more" may be the best strategy, says Caulkins.
"Handbooks don't need to include every single process," he says.
Policies on social media, for example, needn't go into detail on what employees should not say about the company within that medium. If an employee posts something malicious about the company and defends his action by saying it wasn't specifically proscribed in the handbook, says Caulkins, HR can simply say that it's common sense to know that writing such a thing would be prohibited.
"Your policy should make a distinction between false statements and maliciously false statements with intent to harm," says Baffa.
Indeed, social media has created a whole new level of visibility into the types of gripes and complaints employees have always had.
"There used to be water-cooler conversations -- now, thanks to social media, everyone's around the water cooler," says Baffa.
Companies can and should make it clear to employees that they can't use social media to say negative things about their company's products, services and customers -- and they should enforce that, he says. However, as per Griffith's memo, don't tell them they can't criticize the company or other employees.
"Make sure your policy covers customers and products and services, but leave the rest up to good judgment, and have a good internal system for addressing complaints," says Baffa.
With regard to social media, Cooperman cites one client's policy as an example of what to do.
"Their policy basically says, 'What you post on social media is available to many people, so please think before you post,' " she says. It acknowledges that the company can't restrict what employees do during their free time, but urges them not to post items that could detrimentally affect workplace morale or the company's business.
"They don't try and restrict what employees do; they merely offer suggestions," says Cooperman. "And the policy was found to be lawful."
Policies restricting or forbidding the use of cellphones and cameras in the workplace -- typically put into place by companies hoping to avoid inappropriate employee videos surfacing on YouTube and the like -- may be understandable, but employers need to be careful there too, says Baffa.
"Putting broad restrictions on employees in these areas is seen by the board as potentially leaving employees with the impression that they can't use those resources for concerted activity," says Baffa.
His advice? Be specific.
"If you're trying to prevent employees from using their cameras at work, write the policy in such a way that makes it clear why you're not allowing it or what they're not permitted to take photos of," says Baffa.
For example, he says, rather than having a blanket prohibition on devices, a restaurant should instead specify that employees who use their camera phones to cast doubt on the quality or safety of its food will be punished.
Contact with the media is another touchy area. Rather than forbidding employees from contacting the media, says Caulkins, the handbook should instead require employees to alert the company about any contacts they have with the media.
"The general counsel has taken the position that if you start restricting contacts with the media, you're restricting their ability to discuss working conditions with the outside world," he says.
Although the NLRB's seemingly ever-tighter reins on employers can be exasperating, Baumgarten counsels patience.
"These policies of the NLRB have not been reviewed by a court," he says. "The last word has not been written."