Recently, the National Labor Relations Board (“NLRB”) announced a settlement it “secured” which required a company to rescind certain work rules and pay two discharged employees $297,000. Of note, the workers were not discharged for violating the alleged unlawful work rules. In addition, the workplace was not unionized and no union organizing activity had occurred.
A review of the underlying facts suggests nothing more than a typical employment dispute. A furniture seller acquired a new facility and implemented its own policies and practices. Two employees (including a Shift Manager) took issue with those policies and practices and repeatedly violated company policy through insubordinate and other behavior (e.g., using offensive and inappropriate language in customers’ presence). The company-employee friction culminated when one of the employees said the owner was “high” for implementing the new policies. As a result, the company discharged the employees.
The discharged employees subsequently filed an unfair labor practice charge. Among other things, the employees alleged they had expressed safety concerns by claiming the owner was “high.” As part of its investigation, the NLRB obtained the company’s employment policies. The Board then concluded that certain policies unlawfully prohibited employees from discussing their working conditions. Those policies included: a previously rescinded wage disclosure policy (which inadvertently had been left in the new hire packet); an IT policy regarding use of email systems and company equipment; and policy language regarding use of the company’s confidential information and intellectual property. Notably, the company did not claim the employees violated the policies nor did any discussion of the policies occur in connection with the employees’ discharge. In fact, the company had not recently disciplined or discharged any employees for violating these policies. Nonetheless, the Board pursued the perceived National Labor Relations Act violations against the company, ultimately filing a complaint and seeing the matter proceed to a hearing before the parties settled.
The Board’s aggressive approach in this matter highlights the importance of ensuring all employers maintain properly updated employee handbooks and policies. This holds true regardless of whether a workplace is unionized or whether organizing activity is underway.
If you have questions about this matter, your employee handbook/policies, or other Labor and Employment issues, please do not hesitate to contact Andrew Cleves or another member of the Frantz Ward Data Labor and Employment Practice Group.