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Fifth Circuit Reins In NLRB After It Declares Basic Workplace Civility Policies Illegal

As we have reported to you in the past, workplace conduct policies have become a hotbed of trouble due to the NLRB’s recent focus on their potential for chilling union activity. In one such recent action, the NLRB attacked several employee handbook policies of employer T-Mobile USA, Inc./MetroPCS Communications, Inc. (MetroPCS is an affiliate of T-Mobile; both are referred to collectively herein as “T-Mobile”) because the Board found the policies inhibited employees’ legally-protected rights under the National Labor Relations Act (“NLRA”) to act together to improve the terms and conditions of their employment. T-Mobile appealed the NLRB’s decision as to four of these policies to the Fifth Circuit Court of Appeals; the NLRB cross-filed for enforcement of its decision. The Fifth Circuit refused to enforce the NLRB Order on three of the four T-Mobile handbook policies.

The first policy considered by the Fifth Circuit was T-Mobile’s “workplace conduct” policy, in which the NLRB took issue with the policy statements encouraging employees to maintain a “positive work environment” and “promote[] efficiency, productivity, and cooperation” … “with respect to work.” The NLRB argued this inhibited legally protected “potentially contentious” unionizing discussions. However, the Fifth Circuit countered that a reasonable employee can and should understand that this policy simply meted out general civility guidelines. The Fifth Circuit noted that such guidelines promote not only an employer’s interest in maintaining a workplace conducive to productive business operations, but also protects the rights of employees to be treated professionally, courteously, and respectfully. Such a policy, the Fifth Circuit found, does not violate the NLRA.

The second policy at issue before the Fifth Circuit was T-Mobile’s “commitment to integrity” policy, which listed several acts of misconduct prohibited in the workplace, including “arguing or fighting,” “failing to treat each other with respect,” and “failing to demonstrate appropriate teamwork.” The Court again found that these guidelines were basic standards of generally acceptable decorum. The Court indicated they did not inhibit activity protected by the NLRA because “a reasonable employee would be fully capable of engaging in debate over union activity or working conditions” without engaging in the conduct prohibited by the integrity policy.

The third policy considered by the Fifth Circuit, which it also determined was not inconsistent with the NLRA, was T-Mobile’s “acceptable use policy,” which prohibited “non-approved individuals” from accessing non-public information held by the Company. The NLRB posited that this language prohibited protected activity, such as the exchange of wage and hour information. However, in refusing to enforce this part of the Board’s Order, the Circuit Court pointed out that the scope of this policy limited it to the exchange of “non-public” information, which is reasonably interpreted not to include information that may be properly used in protected activity, such as wage and benefit information. The Fifth Circuit found the policy was appropriately limited and therefore did not suggest that protected activity was inhibited.

However, the Fifth Circuit did uphold the NLRB’s finding with regard to the fourth policy in T-Mobile’s appeal. The Company’s “no recording policy” prohibited employees from taking pictures, audio or video recordings in the workplace. The NLRB held, and the Circuit Court agreed, that this no-recording policy was too broad, as it could reasonably be interpreted to include a ban on protected activity, such as “an off-duty employee photographing a wage schedule.” The Court’s reasoning on this policy is distinguishable from the workplace conduct and integrity policies because it expressly prohibits certain forms of protected activity, whereas the others provided basic behavioral guidelines that reasonably apply to workplace conduct and protected activity.

The area of employee policies continues to be a difficult one for employers to navigate, but decisions like the T-Mobile case are a sign that the federal courts will continue to keep the NLRB in check, as they seek to enforce the NLRA against a broader range of employers.

© Copyright 2017 Squire Patton Boggs (US) LLP

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About this Author

Laura Lawless Robertson, Squire Patton, Discrimination Lawyer, Harassment
Senior Associate

Laura Lawless Robertson’s practice focuses on labor and employment issues and general litigation matters. Laura represents employers facing claims by employees alleging sexual harassment, retaliation, wrongful termination, breach of contract, and wage and hour violations. She also represents employers against discrimination claims on the basis of disability, gender, age, race, national origin and religion. Laura serves on the Board of Directors for Recovery Innovations, Inc., and the Labor and Employment Law Section of the Maricopa County Bar Association. She is also a...

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