The National Labor Relations Board (NLRB) continues its assault on employee handbooks. A recent example involves Chipotle (as if they don’t have enough trouble). Chipotle terminated an employee for gathering signatures on a petition protesting working conditions. The NLRB ruled Chipotle’s actions violated the National Labor Relations Act (NLRA) by inhibiting the employee’s right to engage in “protected concerted activity.” As a reminder, employees are permitted to discuss wages, hours, and working conditions as protected activity.
The NLRB went further, however, and found that Chipotle’s handbook contained unlawful policies regarding confidential information, social media, solicitation, communications, and political activity because employees could interpret them as prohibiting protected concerted activity in violation of Section 7 of the NLRA. The policies were “ambiguous” in their discussions of concepts involving “civility,” “disparagement,” “respect,” and “confidential information.”
On their face, Chipotle’s policies seem reasonable, but the NLRB found them to be overly broad and ambiguous. For example, a social media policy prohibiting “false” and “misleading” posts is overbroad – the employee must have a malicious motive in making a knowingly false statement. The NLRB continues to interpret what constitutes unlawful interference with protected concerted activity in a very expansive manner. It is not relevant that the wording of the policies did not actually restrict an employee’s activity. Further, Chipotle was not allowed to demonstrate that the NLRB’s construction may itself be overbroad.
The upshot of Chipotle and other NLRB decisions is that employers must be careful in how their policies and handbooks are drafted. Liberal use of disclaimers may help, but may not excuse language the NLRB deems overbroad or ambiguous. Careful review of handbooks and other policies will continue to be necessary as the NLRB continues its campaign to aggressively protect concerted activity.