NLRB Continues to Attack Non-Unionized Employer’s Common Work Rules

HH&K previously reported about the NLRB General Counsel’s advice memoranda that collected and analyzed recent Board cases finding common employee handbook provisions illegal.  As we noted, most of the employers caught in the NLRB’s web have been non-unionized employers.  Since that post, the Board has continued its assault on employer work rules.

In Lily Transportation Corporation, (01-CA-108618; 362 NLRB No. 54), the Board affirmed an administrative law judge’s decision finding three handbook provisions unlawful.  The first was an overbroad dress code provision that prohibited employees from wearing any logos, slogans or insignia other than the Eli Lily insignia.  The Board found this provision unlawfully prevented employees from wearing union support buttons.


The Board also invalidated a confidentiality provision stating employees could be disciplined for “Disclosure of confidential information, including Company, customer information and employee information maintained in confidential personnel files.”  The Board held that the provision could be read to prevent employees from discussing information regarding wages and hours, which might be contained in employee personnel files, and was thus, unlawful.


Finally, the Board affirmed the ALJ’s decision finding an internet posting rule that prohibited employees from posting “information or comments about Lily, Lily’s clients, Lily’s employees or employees’ work that have not been approved by Lily on the internet, including but not limited to blogs, message boards, and websites.”  The Board found the provision would reasonably be construed by employees to limit conversations about work, including their terms and conditions of employment.  The rule also stated that “Lily will use every means available under the law to hold persons accountable for disparaging, negative, false, or misleading information or comments involving Lily or Lily’s employees and associates on the internet and may take corrective action up to and including discharge of offending employees.”  The Board found the second portion of the rule was invalid as it would tend to intimidate employees and chill free conversation of their Section 7 rights.


In a second case, DirecTV U.S. DirecTV Holdings, LLC, (21-CA-039546; 362 NLRB No. 48), the Board considered a case that had been remanded because of the Supreme Court decision in Noel Canning.  The Board adhered to its previous decision finding four work rules invalid.  The Board invalidated a rule stating employees should not contact the media and a rule stating that  “[i]f law enforcement wants to interview or obtain information regarding a DIRECTV employee, whether in person or by telephone/email, the employee should contact the Security department in El Segundo, Calif., who will handle contact with law enforcement agencies and any needed coordination with DIRECTV departments.”


The Board also invalidated Direct TV’s confidentiality provision which “contains the following language: ‘Never discuss details about your job, company business or work projects with anyone outside the company . . . never give out information about . . . DIRECTV employees [and] employee records.’”

Finally, the Board invalidated a “overly broad” social media rule that stated “Employees may not blog, enter chat rooms, post messages on public websites or otherwise disclose company information that is not already disclosed as a public record.”


Unfortunately for Direct TV, the matter is not finished.  The Board also remanded a portion of the case regarding use of the employer’s e-mail system for a further trial in light of the Board’s Decision in Purple Communications.


Article written by Dawn J. Lanouette, partner at Hinman, Howard & Kattell, LLP.  To contact Mrs. Lanouette directly please email or call (607) 723-5341.

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