Overly broad policy could give an employee protected status

The National Labor Relations Board (NLRB) has provided more guidance to employers about the effect of overly broad workplace conduct — including social media — policies. Among other things, the National Labor Relations Act covers most but not all union and non-union employees who engage in “protected concerted activity” which is collective action regarding the terms and conditions of employment.

According to the NLRB, discipline imposed pursuant to an overly broad workplace conduct rule can violate the the National Labor Relations Act even if the conduct was not protected concerted activity. This rule has become known as the Continental Rule, named after a case involving the Continental Group Inc.

The NLRB will find sweeping workplace conduct policies overly broad if the policy prohibits or “would reasonably tend to chill” employees from engaging in protected concerted activity. Under the Continental Rule, if the policy is overly broad, the NLRB can invalidate the discipline imposed even if the employee was not actually engaged in protected concerted activity.

Thus, the NLRB may protect employee conduct that implicates the terms and conditions of employment but is not concerted if the employee was disciplined pursuant to an overly broad policy.

Such a rule is unsettling given the NLRB’s propensity to find employer policies overly broad.

The NLRB offers employers an exception. It will uphold discipline imposed pursuant to an overly broad rule if the employer can establish the employee’s conduct actually interfered with the employee’s own work, the work of other employees or the employer’s operations, and the interference (rather than the rule) was the reason for the discipline.

Here is an illustration of the Continental Rule’s application:

An employee was discharged for violating the employer’s confidentiality rule by complaining to a client about an individual compensation issue. The employer’s confidentiality rule prohibited employees from disclosing terms of employment, including compensation, to “other parties.” The NLRB found this policy unlawfully broad.

Although the conduct relates to the terms and conditions of employment, it is not concerted. There was not a group of employees complaining nor was the employee complaining as a spokesperson for other employees.

Thus, it is not protected concerted activity. However, the NLRB said the activity implicates Section 7 concerns (wages) and the employee was terminated pursuant to an overly broad policy. Thus, the NLRB invalidated the discharge pursuant to the Continental Rule.

Here, the Continental Rule changed the outcome, the discharge would have been upheld but for the employer’s overly broad policy.

In light of the NLRB’s focus on employer workplace conduct policies and the NLRB’s expanded employee protection under the Continental Rule, employers are well advised to review their social media policies.

Contact Sherry Downer, an attorney with Fennemore Craig practicing in the areas of employment and labor law and commercial and business litigation, at sdowner@fclaw.com.