Employment Law Daily Rule banning ‘offensive’ conduct failed to alert employees as to what’s impermissible
Tuesday, May 10, 2016

Rule banning ‘offensive’ conduct failed to alert employees as to what’s impermissible

By Ronald Miller, J.D. An employer violated the NLRA by maintaining a rule in its employee handbook that prohibited conduct that is “offensive” to fellow employees, ruled the NLRB. Here, the Board found that the rule did not provide sufficient context for an employee to determine what types of “offensive” comments or behaviors the rule was targeting, or how the rule would or would not be applied in the context of Sec. 7 activity. Moreover, relying on its ruling in Murphy Oil USA, Inc., the Board concluded that the employer violated Sec. 8(a)(1) by maintaining provisions prohibiting class and collective actions in its arbitration agreement (Valley Health System LLC dba Spring Valley Hospital Medical Center, May 5, 2016). “Offensive” conduct. The General Counsel alleged that the employer, a healthcare system, violated Sec. 8(a)(1) by maintaining a handbook rule prohibiting employees from engaging in conduct that “brings discredit” to the system or facility and that “is offensive to . . . fellow employees.” Under Lutheran Heritage Village-Livonia, if a work rule does not explicitly restrict employees’ protected activities, it nonetheless will violate Sec. 8(a)(1) if “(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.” In this instance, the rule was not alleged to explicitly restrict protected activities or to have been promulgated in response to or applied to restrict Sec. 7 activities. Thus, the relevant inquiry was whether employees would reasonably construe the challenged rules to prohibit Sec. 7 activity. Applying the Lutheran Heritage standard, the law judge recommended dismissing this complaint allegation, finding that employees would not reasonably construe the bar on conduct that is “offensive” to fellow employees to prohibit Section 7 activity. The Board disagreed. It observed that the broad prohibition against conduct “offensive” to coworkers stands in relative isolation. “Offensive” did not appear among a list of serious forms of objectively clear misconduct that would help employees understand its contours. Moreover, it was not accompanied by any other descriptive language that would help employees interpret what types of “offensive” conduct the rule was targeting. Employees should not have to decide at their own peril what conduct was subject to the prohibition, declared the Board. Although the rule contained introductory language setting forth an intention to promote “efficient operation” and protect “the rights and safety of all,” that language did little to cure its ambiguity or overbreadth. As a result, employees would likely refrain from engaging in certain Sec. 7 activity due to a reasonable concern that their conduct could be perceived as running afoul of the rule. Waiver of class claims. The Board also reversed the ALJ’s recommended dismissal of the complaint’s allegation that the employer violated Sec. 8(a)(1) by maintaining an arbitration agreement that contained provisions prohibiting class and collective actions. In Murphy Oil, the Board held that an employer violates the Act “when it requires employees covered by the Act, as a condition of their employment, to sign an agreement that precludes them from filing joint, class, or collective claims addressing their wages, hours, or other working conditions against their employer in any forum, arbitral or judicial.” Such agreements improperly interfere with the substantive right of employees, under Sec. 7, to engage in collective action to improve working conditions. Accordingly, the Board reversed the law judge.

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