The NLRB has issued a series of decisions in recent months finding various employee handbook provisions unlawful. The Labor Board’s scrutiny of handbooks continued recently in another case, Direct TV.
In that case, the employer promulgated the following rule:
If law enforcement wants to interview or obtain information regarding a Direct TV 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.
This rule probably looks familiar to many of you. Most employers maintain such a rule for a good reason – if law enforcement is contacting employees about company matters, the employer usually wants to find out what is happening and provide the employee with legal counsel, if appropriate.
The NLRB, however, held that the rule was unlawful. According to the Labor Board, the rule could be read by reasonable employees as interfering with a NLRB investigation since NLRB Board agents function as “law enforcement.” Interfering with such an investigation is a violation of Section 8(a)(4) of the NLRA.
I’d imagine that few, if any, employers wrote such a rule with the NLRB in mind – when one says “law enforcement,” they usually mean federal, state, or local police, not the NLRB. Yet, this case again demonstrates how broadly the NLRB now reads work rules as implicating labor law.
As a reminder, the NLRB is bringing many of these employee handbook cases under the theory that the overly broad handbook language unlawfully infringes on an employees’ right to engage in protected concerted activity or, as in Direct TV, that the rule interferes with an NLRB investigation. The right to engage in protected concerted activity and the NLRB’s right to investigate unfair labor practices extends to non-union workplaces. Rules that could be “reasonably construed” as prohibiting protected concerted activity or interfering with a Board investigation are unlawful under Section 8(a)(1).