Consistent with its intent to relax scrutiny regarding the legality of employment policies (see here and here), the National Labor Relations Board (“NLRB” or “Board”) recently upheld, in LA Specialty Produce Co., two workplace rules: A confidentiality policy and a rule prohibiting employees from responding to media inquiries. Applying its existing two-part balancing test, the Board proceeded to evaluate the lawfulness of the policies in question from the perspective of a “reasonable employee.” Under this approach, the Board will consider “the perspective of an objectively reasonable employee who is ‘aware of his legal rights but who also interprets work rules as they apply to the everydayness of his job.’” As such, if a reasonable employee would interpret a policy as not interfering with his or her rights under Section 7 of the National Labor Relations Act (“NLRA”), then it will be found lawful.
The first policy at issue in LA Specialty Produce was a confidentiality policy, which read: “Every employee is responsible for protecting any and all information that is used, acquired or added to regarding matters that are confidential and proprietary of [the employer] including but not limited to client/vendor lists.” The union challenged the policy, arguing that the confidentiality provision can be reasonably construed to restrict employees’ right to contact third parties, including customers of their employer, for support in labor disputes. However, the Board upheld the confidentiality policy on the grounds that it was instead intended to protect confidential and proprietary records, such as customer lists, which “target the protection of business information a company has developed over time” and “do[es] not target information central to the exercise of Section 7 rights, such as employee salary or wage information. Nor do they prohibit employees from appealing to customers or vendors for support in a labor dispute, or from disclosing the names and locations of customers or vendors derived from sources other than the employer’s own confidential records.”
The second policy in LA Specialty Produce was a media contact rule stating: “Employees approached for interview and/or comments by the news media cannot provide them with any information. Our President . . . is the only person authorized and designated to comment on Company policies.” The union challenged the policy on the premise that it precluded employees from speaking with the media about working conditions, labor disputes, and other terms and conditions of employment. The Board upheld the rule because, it stated, a “reasonable employee” would understand that the rule does not infringe on his or her NLRA rights—while the rule prohibits employees from speaking when “approached” by the media, it does not restrict employees from taking concerns to the press.
LA Specialty Produce Co. contributes to a growing body of NLRB decisions upholding workplace rules. Nevertheless, employers should continue to review their employee handbooks and any other policies in effect to ensure that they do not infringe upon their employees’ Section 7 rights. Though the current NLRB will not reverse course, it continues to scrutinize the business justifications for rules that restrict employee rights on their face, or which may restrict such rights through their breadth. Employers must also keep in mind the various other state and federal requirements that pertain to workplace policies. For more information on these topics, or any other legal issues affecting the workplace, contact the authors of this article or the Hogan Lovells lawyer with whom you work.