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NLRB Strikes Down Employer’s “Positivity Policy”
05/15/2016

“Come to work with a positive attitude, and promote a positive work environment.”  Most employers would look at that statement and think “that makes sense.”  But if employers incorporate this type of broad statement into their employee handbooks, they might run afoul of the National Labor Relations Act (“NLRA”).  Or so says the National Labor Relations Board (“NLRB”) in its recent decision striking down yet another handbook policy as a violation of an employee’s right to engage in “concerted protected activity” under the NLRA.

T-Mobile’s “Positivity Policy” 

The General Counsel of the NLRB filed several complaints against T-Mobile, alleging that many of the company’s handbook policies violated the NLRA because they were overbroad and thus, employees could “reasonably construe the language [of the policy] to prohibit Section 7 rights” under the NLRA.  That section of the NLRA guarantees employees the right to engage in “concerted protected activity;” which is activity by two or more employees that addresses and is intended to improve workplace terms and conditions.  So, any workplace rule or policy that interferes with that right violates the NLRA.
 
Among the several policies the General Counsel took issue with was T-Mobile’s “positivity policy” under the “Workplace Conduct” provision of the company’s handbook.  That policy stated:
 
"The Company expects all employees to behave in a professional manner that promotes efficiency, productivity, and cooperation.  Employees are expected to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers, and management."
 
In opposing the policy, the General Counsel argued that the language was so ambiguous that it failed to define with any clarity the objectionable conduct.  Specifically, the phrases “positive work environment” and “communicating in a manner that is conducive to effective working relationships” were undefined and vague.  Because employees had no guideline on what could get them in trouble, the policy would chill the exercise of their Section 7 rights.  In response, T-Mobile argued that this policy was just intended to promote its business objectives of “efficiency, productivity and cooperation,” as stated in the first sentence of the policy. 
 
The General Counsel’s complaint was first decided by an Administrative Law Judge (“ALJ”), who disagreed with the General Counsel’s arguments.  The ALJ stated that the “positivity policy” merely established T-Mobile’s expectation for professional behavior in the work environment.  The ALJ went on to hold that the rule could not be read as pertaining to Section 7 activity, and to subscribe such meaning to the policy was “quite simply, farfetched.”  
 
The General Counsel filed the NLRB equivalent of an appeal. 
 
NLRB’s Negative Reaction
 
The NLRB disagreed with the ALJ, holding that “employees would reasonably construe the rule to restrict potentially controversial or contentious communications and discussions, including those protected by Section 7 of the [NLRA], out of fear that [T-Mobile] would deem them to be inconsistent with a ‘positive work environment.’”
 
The Board noted that the T-Mobile policy was not limited to conduct that would objectively be viewed as unprotected.  Rather, employees would view the overbroad language in the policy as allowing T-Mobile to subjectively deem conduct as violating the policy, including disagreements or conflicts protected by the NLRA.
 
The NLRB noted:
 
Because labor disputes and union organizing efforts frequently involve controversy, criticism of the employer, arguments, and less-than-“positive” statements about terms and conditions of employment, employees reading the rule here would reasonably steer clear of a range of potentially controversial but protected communication in the workplace for fear of running afoul of the rule. 
 
In its decision, the NLRB also struck down other provisions in the handbook, including: 
 
  • T-Mobile’s “confidentiality rule” which stated that its handbook was “confidential and proprietary” and could not be disclosed to or used by any third party without the consent of the Company. 
  • A provision in T-Mobile’s confidentiality agreement, wherein employees agreed to keep certain secret and proprietary business information confidential.  The problem with the provision was that T-Mobile included “wage and salary information” as among the types of information employees were required to keep confidential. 
  • Provisions within T-Mobile’s Code of Business Conduct that prohibited employees from accessing or disclosing other employees’ contact information without a business need to do so, and without prior authorization from the subject employee or manager. 
  • T-Mobile’s Internal Investigation procedure, which required employees to fully cooperate in internal investigations, prohibited employees involved from discussing the investigation with others, and threatening discipline for such discussions. 
  • T-Mobile’s rule stating that “all inquiries from the media must be referred without comment to the Corporate Communications Department.” 
  • T-Mobile’s “wage and hour complaint procedure” which stated that employees who felt they hadn’t been paid all wages due or who had paycheck deduction concerns “must” immediately notify management, HR or the integrity line; and threatened discipline for failing to follow the company’s wage and hour policies. 
  • A policy prohibiting employees from using T-Mobile’s email system for nonbusiness-related reasons. 
  • T-Mobile’s rule prohibiting employees from using photographic, audio, video, or any other recording devices in the workplace without manager, legal, or HR authorization. 
In each instance, the NLRB found that the above-policies, as written by T-Mobile, were so overbroad and vague that they could reasonably be construed by employees as prohibiting concerted protected activity.
 
Takeaway
 
The T-Mobile decision is just the latest from the NLRB striking down employer policies that it considers overbroad.  Policies that used to be routine provisions in employee handbooks are now regularly scrutinized by the Board under the light of whether the policy “could reasonably be construed” as chilling an employees’ Section 7 rights.  So, once again, we encourage you review your “professionalism” or “productive work environment” policies to ensure that they are not overbroad policies setting vague standards of a “positive work environment” or requiring only “positive attitudes and communications.”  And remember, the agency’s rulings on handbook policies apply to all employers, regardless of whether or not their employees are represented by unions.
 


Editors
Don Berner Image
Don Berner, the Labor Law, OSHA, & Immigration Law Guy
Boyd Byers Image
Boyd Byers, the General Employment Law Guy
Jason Lacey Image
Jason Lacey, the Employee Benefits Guy
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