Hunton Retail Law Resource

If you are a retailer, you may have policies and procedures in place regarding who can speak on behalf of your company. Such policies may generally instruct employees not to speak to the press as a representative of the company, and to direct all media inquiries to a particular person or department. Similarly, if you are a retailer, you may have a policy in place that instructs employees to forward any reference requests to your human resources department. These commonplace policies allow retailers to control their public image and protect employee privacy, among other benefits. But, according to a recent decision by a National Labor Relations Board (“NLRB”) administrative law judge (“ALJ”), such policies may violate the National Labor Relations Act (“NLRA”) by interfering with, restraining or coercing employees in their right to engage in concerted activity.

The decision, BGC Partners, Inc., Case 28-CA-178893 (May 10, 2017) (Region 28, Tucson, Arizona), concerned the policies in the employee handbook of a nonunion real estate management company based in Tucson, Arizona. The policies were challenged on the grounds that they were overly broad and employees would reasonably construe them as banning their rights under Section 7 of the NLRA, which gives employees the right to self-organization, to bargain collectively and to engage in concerted activity.

The ALJ concluded that 17 of the employer’s policies violated Section 8(a)(1) of the NLRA and were unlawful, including the employer’s neutral reference and press inquiry policies. The neutral reference policy required employees to forward all requests for information concerning employees to the company’s human resources department for response. This policy was held to violate the NLRA because, according to the ALJ, it “may reasonably be construed to ban employees from engaging in their [Section] 7 right to discuss wages or other workplace issues amongst themselves or with a union.” The press inquiry policy prohibited employees from speaking to the press about the company’s ongoing business and related matters without prior authorization, but specified that employees could still speak to the press regarding any concerns the employees had a legal right to disclose. This policy was held to violate the NLRA because it banned unauthorized contacts and, according to the ALJ, was ambiguous to a reasonable employee.

As discussed on our Employment & Labor Law Perspectives blog, in recent years, the NLRB and ALJs interpreting the NLRA have taken an expansive view of what constitutes “concerted activity” under the NLRA and which employer policies could be interpreted to obstruct employees’ right to engage in concerted activity. In his article, Returning Balance to the NLRB, published in Law360, Hunton labor partner Kurt Larkin describes recent NLRB actions as “an all-out assault on an employer’s right to maintain common sense workplace policies including confidentiality rules, employer arbitration programs, civility codes and even rules that protect an employer’s legal obligation to investigate and remediate complaints of workplace misconduct and harassment—all in the name of protecting employee rights to engage in protected, concerted activity.” The BGC Partners, Inc. decision continues this trend of interpreting the NLRA in a way that impedes employers’ and retailers’ ability to run their businesses and manage their employees.