Last week the Court reviewed, and largely reversed, a National Labor Relations Board’s (NLRB or Board) order finding that four policies contained in a Company’s employee handbook violated the National Labor Relations Act (the Act). The case is important because the challenged policies are similar to policies contained in many employee handbooks. Moreover, an employee who is terminated for violating a policy that the Board finds is unlawful can be reinstated with back pay.
In T-Mobile USA, Inc. v. National Labor Relations Board, the NLRB found that certain policies in an employee handbook violated the Act because they could be interpreted by a reasonable employee as discouraging unionizing or other concerted activity. The challenged policies included policies: 1) encouraging a “positive work environment”; 2) prohibiting arguing or fighting and failing to treat others with respect; 3) prohibiting all photography or audio and video recordings in the workplace; and 4) prohibiting access to electronic information by non-approved individuals.
T-Mobile appealed the NLRB’s findings that its policies violated the law. In analyzing the four policies at issue, and giving deference to the Board’s conclusions supported by substantial evidence, the Fifth Circuit held that the positive work environment, the no arguing or fighting/treat others with respect and the prohibition against unapproved disclosure of electronic information policies were all valid, lawful policies that would not be interpreted by a reasonable employee as prohibiting protected concerted activity. However, the Court found that the Board did not err in finding that the “no photography” policy violated the law because it was drafted so broadly that it would be interpreted by a reasonable employee as prohibiting activity that was legally protected activity. The Court’s primary concern was that the language of the policy “encompasses any and all photography or recording on corporate premises at any time without permission from a supervisor”. The Court’s opinion does not foreclose the possibility that another, more limited policy tied to legitimate business interests and less sweeping in scale, might pass its scrutiny.
The Court’s full opinion is here.