The National Labor Relations Act (“NLRA”) gives private-sector employees the unqualified right to engage in “protected concerted activity” which includes discussing among themselves such things as wages, hours and other terms and conditions of employment.  An employer cannot promulgate a work rule that tends reasonably to chill employees’ exercise of that statutory right.

Karl Knauz Motors, Inc. owned and operated a BMW dealership.  Its employee handbook contained the following (apparently common sense) rule:

(b) Courtesy: Courtesy is the responsibility of every employee.  Everyone is expected to be courteous, polite, and friendly to our customers, vendors and suppliers, as well as to their fellow employees.  No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.

The Board’s Decision

In a September 28, 2012 decision, the National Labor Relations Board for two reasons found the rule unlawful “because employees would reasonably construe its broad prohibition against ‘disrespectful’ conduct and ‘language which injures the image or the reputation of the Dealership’” as including employees’ protected statements objecting to and seeking improvement of terms and conditions of employment.

First, there was nothing in the rule that would reasonably suggest to employees that such protected communications were beyond the rule’s broad reach.  Second, an employee would reasonably assume that the employer would “regard statements of protest or criticism as ‘disrespectful’ or ‘injur[ious] [to] the image or reputation of the Dealership.’”

The Board took particular offense to the second section of the rule as specifically proscribing certain types of conduct and statements.  The Board construed these as workplace “lines” that a Karl Knauz Motors’ employee may not safely cross.  In the Board’s estimation, the second section of the rule prohibits not merely a manner of speaking, but rather the actual content of employee speech—content that would damage the employer’s reputation.

Consequently, a reasonable employee would conclude that protected communications about the employer’s allegedly unlawful terms and conditions of employment would expose the employee to employer sanctions for violation of its handbook rule.  Stated differently, the Board felt that compliance with the first section of the rule offered no assurance against sanctions under the second section of the rule.

Final Takeaway

Historically, NLRB decisions have ebbed and flowed depending upon the current occupant of the White House, who appoints the Board’s members.  Lately, the pendulum has continued to swing in the direction of further limiting employer rights to regulate threatening or offensive employee speech, leading one commentator to question whether at-will employment will be relegated to a historical artifact.

The takeaway from the Board’s decision vector is for employers to examine employee handbooks to compare and contrast their language with that found by the NLRB to be unlawful.  The cost of an amendment pales in comparison with the cost of an NLRB investigation and proceeding.  Remember that the NLRA protects  all private sector employees, irrespective of whether or not they belong to a union.

The employment and labor law attorneys in the Westport, Connecticut office of Maya Murphy, P.C. have extensive experience in the counseling, negotiation and litigation of all sorts of employment-related issues and assist employers from Greenwich, Stamford, New Canaan, Darien, Norwalk, Westport and Fairfield in ensuring compliance with the applicable law. Contact Joseph Maya and the other experienced employment law attorneys at Maya Murphy, P.C. at (203) 221-3100 or to schedule a free initial consultation.