A National Labor Relations Board Administrative Law Judge’s recent decision highlights our ongoing concerns about the importance of wording and intent when crafting employee policies. Overreaching often gets an employer in trouble and AT&T Mobility’s Privacy of Communications rule did just that.
The rule came under scrutiny after an AT&T Mobility sales associate and a shop steward at a Washington, D.C. area store recorded a meeting where AT&T fired a co-worker. Marcus Davis recorded the meeting on his personal cell phone and also on a company-owned phone without the knowledge of anyone in management. Afterward, Davis’ store manager became suspicious and demanded the company phone from him to delete the recording.
On the employee intranet, the Privacy of Communications rule stated that “Employees may not record telephone or other conversations they have with their coworkers, managers or third parties, unless such recordings are approved in advance by the Legal Department, required by the needs of the business, and fully comply with the law and any applicable company policy.” AT&T Mobility claimed that it must protect its customer network and thus put these rules in place. However, the rule does not mention conversations with customers, and further, AT&T Mobility already addressed the protection of customer information and data by other policies which barred employees from recording customer conversations and sharing customer information.
An employer violates an employee’s rights under the NLRA when the employer restricts activities protected by Section 7, such as when “employees are acting in concert for their mutual aid and protection.” In a similar case against Whole Foods Market, Inc., the NLRB found illegal company rules regarding the prohibition of using a recording device without knowledge and approval of management. Just as with AT&T Mobility, the Whole Foods employee handbook stated that any violation could lead to discipline including discharge. Although the NLRB acknowledged the employer’s interest in maintaining privacy, it determined that Whole Foods had violated the employee’s rights.
After hearing the AT&T Mobility case, the trial judge ordered AT&T Mobility to rescind the Privacy of Communications rule across all of its stores and notify employees of the changes, along with a posting of Employee Rights. The judge held that the employer could protect its interests utilizing a narrower rule and keeping its other customer-based privacy policies in place. He further noted that since employees are so thoroughly trained not to access customer proprietary network information and sensitive personal information, it should not be included in a separate policy that interferes, restrains or coerces an employee who engages in protected concerted activity.
We expect that AT&T Mobility will appeal this decision. Regardless, these cases demonstrate that even a few misplaced or imprecise words can create liability with the NLRB by inadvertently interfering with employee rights. The NLRB has approved policies when it deems that they are structured and sufficiently narrow. As an example, in 2011, the NLRB held that an Arizona medical facility’s rule prohibiting the use of cameras to record images of patients or hospital equipment did not violate the law.
This particular area of the law seems to be in constant flux. For help with improving the compliance of your policies, please contact Peter Bennett (pbennett@thebennettlawfirm.