Three (3) years ago, we addressed the continued attack by the Obama Board on employee handbooks (November 2014 Newsletter). Seemingly logical, rational, and sensible company policies were repeatedly stricken down by the NLRB in its overly broad interpretation of employee Section 7 rights (29 USC § 157). A little over two (2) years ago, the NLRB General Counsel issued a thirty (30) page guidance memorandum, setting forth his view on the legality of many and varied provisions often found in company policies and employee handbooks (discussed in our March 26, 2015 Blog). Not surprisingly, his view stretched the reasonable interpretation of the law to new lengths!
An example of the General Counsel’s view was the following language found in one handbook:
“Do not discuss ‘customer or employee information’ outside of work including ‘phone numbers [and] addresses’”
Not surprisingly, considering the make-up of the Board at the time, and considering the background of its General Counsel, the GC found the foregoing rule to be overly broad and, thus, illegal. But, again, that was under the Obama Board.
Now, in a recent (August 14, 2017) decision, a split NLRB found lawful a Macy’s rule prohibiting employees from disclosing customer information obtained from store confidential records. In the underlying decision, the Administrative Law Judge, based on precedent created by the Obama Board, had found that Macy’s rule violated Section 7 in that it would tend to prevent employees from appealing to the store’s customers to publicize their grievances. However, the Board, now with a Chairman appointed by President Trump, disagreed and ruled that, although employees have the right to appeal for customer support, Macy’s was within its rights to prohibit employees from using certain customer contact information contained in the store’s confidential records.
The Board is still comprised of two (2) Republicans and two (2) Democrats but, when the fifth seat is filled by President Trump, we will very likely see a return to more “normal” rulings by the NLRB.
For more information on employee handbooks or other employment and labor law issues, please contact Philip S. Mortensen or Scott G. Grubin.