Acceptable Use, Pro-Cooperation, and Recording Device Policies Are Unlawful: NLRB | Practical Law

Acceptable Use, Pro-Cooperation, and Recording Device Policies Are Unlawful: NLRB | Practical Law

In T-Mobile USA, Inc., the National Labor Relations Board (NLRB) held that T-Mobile's workplace policies addressing acceptable employee use of company information, requiring cooperation among employees, and prohibiting employees from making recordings in the workplace violated the National Labor Relations Act (NLRA).

Acceptable Use, Pro-Cooperation, and Recording Device Policies Are Unlawful: NLRB

Practical Law Legal Update w-002-2050 (Approx. 8 pages)

Acceptable Use, Pro-Cooperation, and Recording Device Policies Are Unlawful: NLRB

by Practical Law Labor & Employment
Law stated as of 25 Jul 2017 • USA (National/Federal)
In T-Mobile USA, Inc., the National Labor Relations Board (NLRB) held that T-Mobile's workplace policies addressing acceptable employee use of company information, requiring cooperation among employees, and prohibiting employees from making recordings in the workplace violated the National Labor Relations Act (NLRA).
On April 29, 2016, in T-Mobile USA, Inc., the panel (Board) heading the NLRB's judicial functions held that T-Mobile's workplace policies addressing acceptable employee use of company information, requiring cooperation among employees, and prohibiting employees from making recordings in the workplace would be reasonably construed by employees as restricting protected activities and therefore were unlawful under the NLRA (363 N.L.R.B. No. 171 (Apr. 29, 2016)).
The Communications Workers of America challenged the following T-Mobile workplace policies and rules as unlawful:
  • "Acceptable Use Policy" addressing employees' use of T-Mobile company information.
  • "Commitment to Integrity" rule in T-Mobile's Code of Business Conduct. The rule prohibited:
    • arguing with other employees and supervisors; and
    • failing to treat others with respect.
  • Employee handbook rule requiring employees to maintain a positive working environment.
  • Employee handbook rule prohibiting employees from making recordings in the workplace.

Acceptable Use Policy

T-Mobile prohibited employee-users of its information and communications resources from allowing, without prior written T-Mobile approval:
"non-approved individuals access to information or information resources, or any information transmitted by, received from, printed from, or stored in these resources."
The Board (Chairman Pearce and Members Hirozawa and McFerran) affirmed an administrative law judge's (ALJ) holding that the acceptable use policy language was unlawful because:
  • There was no connection between the policy and T-Mobile's interest in ensuring that its information and communication systems were not used:
    • for unlawful or offensive reasons; and
    • by non-approved individuals.
  • The policy language was unlawfully overbroad because employees would reasonably read it to preclude them from:
    • obtaining and providing workplace policies to coworkers or a union over email; or
    • disclosing their own salary or disciplinary information in print form.
  • Employees would reasonably interpret the policy as prohibiting employees with email system access from, during nonworking time, discussing or disclosing information on T-Mobile's email system about employment terms and conditions with unions and fellow employees, including:
    • wage and salary information;
    • disciplinary actions;
    • performance evaluations; and
    • other protected areas of discussion under Section 7 of the NLRA.
  • T-Mobile has shown no special circumstances justifying a total ban of nonwork email during nonworking time.
    (Purple Commc'ns, 361 N.L.R.B. No. 126 (Dec. 11, 2014); Lutheran Heritage Village-Livonia, 343 N.L.R.B. 646, 647 (2004).)

Commitment to Integrity Provision in Code of Business Conduct

In the commitment to integrity policy within its code of business conduct, T-Mobile prohibited both:
"Making slanderous or detrimental comments about the Company, its customers, the Company's products or services, or Company employees."
"Arguing or fighting with co-workers, subordinates or supervisors; failing to treat others with respect; or failing to demonstrate appropriate teamwork."
The Board held that the policy was unlawful because:

Employee Handbook Rule On Maintaining Positive Working Environment

T-Mobile required employees:
"to behave in a professional manner that promotes efficiency, productivity, and cooperation. Employees are expected to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers, and management."
The Board held that the rule was unlawful because:

Employee Handbook Rule Prohibiting Workplace Recordings

T-Mobile maintained the following rule prohibiting workplace recordings:
"To prevent harassment, maintain individual privacy, encourage open communication, and protect confidential information employees are prohibited from recording people or confidential information using cameras, camera phones/devices, or recording devices (audio or video) in the workplace. Apart from customer calls that are recorded for quality purposes, employees may not tape or otherwise make sound recordings of work related or workplace discussions. Exceptions may be granted when participating in an authorized TMUS activity or with permission from an employee's Manager, HR Business Partner, or the Legal Department. If an exception is granted, employees may not take a picture, audiotape, or videotape others in the workplace without the prior notification of all participants."
The Board held that the rule was unlawful because:
  • The rule failed to distinguish between recordings protected by Section 7 and recordings that are not protected by Section 7.
  • The rule prohibits recordings:
    • during nonworking time; and
    • in nonwork areas.
  • The rule requires employees to obtain T-Mobile's permission before recording.
  • The rule's application is not limited to states in which T-Mobile purports that nonconsensual recording is illegal. The rule also does not reference those laws or note that the recording restriction is limited to recordings that are unlawful under those laws.
  • Employees would reasonably read the rule as prohibiting recording protected by Section 7 (Rio All-Suites Hotel & Casino, 362 N.L.R.B. No. 190, at slip op. 4 (Aug. 27, 2015)).
  • The rule was not narrowly tailored to protect T-Mobile's legitimate interest in:
    • maintaining employees' privacy;
    • protecting T-Mobile's confidential information;
    • promoting open workplace communication; and
    • preventing unlawful harassment.

UPDATE:

In a decision dated July 25, 2017, the US Court of Appeals for the Fifth Circuit:
  • Enforced the NLRB's decision regarding T-Mobile's Workplace Recording Policy, holding the Board's conclusion that it was unlawfully overbroad was reasonable.
  • Granted review to T-Mobile regarding the Board's conclusions that T-Mobile's positive working environment, commitment to integrity, and acceptable use policies were unlawful. The court held that reasonable employees would not read these policies as prohibiting their exercise of Section 7 rights under the NLRA.
    (T-Mobile USA, Inc. v. NLRB, (5th Cir. July 25, 2017).)