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Yes, We’re Still Talking About the NLRB: Another “Standard” Handbook Policy Ruled Unlawful

by: Greg Northen The National Labor Relations Board (Board) recently continued its attack against standard employment policies that it considers to interfere with employee rights under the National Labor Relations Act (NLRA).  On August, 8, 2016, the Board held that an employer’s handbook policy stating that employees are prohibited from conducting “personal business” or requiring that employees perform “only work-related activities” while at work is unlawful. In the latest case, Casino Pauma, a union filed an unfair labor practice claim aimed at, among other issues, a handbook policy requiring employees to limit themselves to work activities while at work.  A Board administrative law judge sided with the NLRB’s argument that the casino’s policy banning employees from conducting personal business during scheduled working hours could violate employees’ rights to engage in protected concerted activity under Section 7 of the NLRA.  The rationale is that employee’s “personal business” and “non-work related activities” could involve discussion of wages, working conditions, complaints about fellow co-workers/supervisors, and other terms of employment, which employers cannot completely prohibit. The judge rejected the casino’s argument that the policy was plainly intended to focus employees on work during working time, concluding that the policy was overly broad because employees could interpret it to prohibit them from engaging in organizing or other activities while on casino property or while off-the-clock. Based on the ruling, a handbook policy with the same limitations as limited to “during working hours” (as opposed to while at work) would likely be permitted because it excludes meal periods, breaks, and pre/post shift time when employees are off-the-clock.  This case serves as yet another reminder as to the importance of reviewing and updating even long-standing policies that have, historically, been used by employers without issue. Accordingly, employers should review handbooks, employee agreements and other policies to eliminate general language that could form the basis for unfair labor practice claims.  If you need assistance updating your handbook or employee policies, contact a CGWG attorney today.