On March 3, 2016, in Dish Network, LLC, 363 NLRB No. 141, the National Labor Relations Board (“NLRB”) struck down Dish Network’s policy prohibiting certain solicitation and distribution of literature in the workplace. The policy in question read:
In the interest of maintaining a proper business environment and preventing interference with work and inconvenience to others, employees … may not distribute literature … of a personal nature by any means, … or solicit for any other reason during work time or in work areas except as specifically authorized in advance by a vice president or higher. Employees who are not on work time ([e.g.] …on lunch or break) may not solicit employees who are on work time.
This policy may sound familiar to employers because it is very similar to many employer policies that restrict solicitation and distribution of literature during working time and in working areas. The Board held that:
[t]he Solicitation in the Workplace policy is unlawful. In determining whether the maintenance of a work rule violates Section 8(a)(1), the appropriate inquiry is whether it reasonably tends to chill employees in the exercise of their Section 7 rights. . . . The Board has, consequently, held that, “an employer may not generally prohibit union solicitation … during nonworking times or in nonworking areas. . . .” Although employers can generally ban solicitation in working areas during working time, such bans cannot extend to working areas during nonworking time.
As a related reminder, in the NLRB’s 2014 Purple Communications, Inc. decision, the Board overruled its Register Guard decision, holding that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email system.” The Board’s prior ruling in Register Guard gave employers the ability to restrict employee email use to business use, giving weight to employers to control company property. Under Purple Communications, employers who allow their employees access to the company email system now must allow those employees to use the company email system to exercise their rights under the NLRA during their nonworking time.
Decisions like these are scary reminders that employment law changes frequently and dramatically, particularly when it comes to interpretations by the NLRB of the National Labor Relations Act. It’s time to dust off those employee handbooks to make sure their provisions are current. If you have any questions or need assistance, please contact us.