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Court tells NLRB ‘Positivity’ Is OK

A federal court told the National Labor Relations Board that it is okay for employers to urge their workers to display a positive attitude.

The decision stems from the Obama era NLRB’s expansion of its reach into nonunion workplaces through regulation of what employers could and could not include in their employee handbooks. For years the board imposed narrower restrictions.

In May 2016 the NLRB struck down several T-Mobile handbook policies, including one that asked employees to be professional and maintain a “positive work environment.”

The NLRB said “employees would reasonably construe the rule to restrict potentially controversial or contentious communications and discussions,” including those protected by federal labor law out of fear that T-Mobile would deem them inconsistent with a ‘positive work environment’.”

On July 25, the Fifth Circuit U.S. Court of Appeals ruled the NLRB was wrong in finding the positive work environment policy was unlawful. It said the NLRB ruling was unreasonable because reasonable employees would know the rule did not prevent them from engaging in protected activity.

The court also overturned the NLRB’s findings that several other T-Mobile rules were unlawful, including a “commitment-to-integrity policy.”

The court agreed with the board, however, that a rule categorically banning photography, audio or video recordings by employees was unlawful. The Second Circuit Court of Appeals upheld a similar NLRB decision on workplace recordings in June.

“Thus, general bans on workplace recordings appear to be a losing proposition for employers from a legal perspective, at least for now,” commented David Pryzbylski, an attorney with the law firm of Barnes & Thornburg.

“Seeing the NLRB reined in on legitimate personnel policies is a welcome sight. Here’s hoping the new additions to the board will help move things in an even more positive direction for employers.”

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