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Federal ALJ Says Ban on Conducting Personal Business in Handbook Violated NLRA Rights

    Client Alerts
  • August 09, 2016

The National Labor Relations Board continues its assault against standard employment policies considered to interfere with employee rights. This time, a federal administrative law judge accepted the Board counsel’s argument that a casino’s policy banning employees from conducting personal business during scheduled working hours violates employees’ right to engage in concerted activity under Section 7 of the NLRA.

In Casino Pauma, a union filed an unfair labor practice claim aimed at a handbook policy requiring employees to limit themselves to work activities while at work. The ALJ concluded that this policy is overbroad because subject employees could interpret it to prohibit them from engaging in organizing or other activities while on the casino’s premises. The judge rejected the casino’s argument that the policy was plainly intended to focus employee on work during working time. By tying the prohibition to activities while at work instead of limiting it to actual working hours, the policy violated employees’ Section 7 rights.

Presumably a policy that is closely tailored to require employees to work during actual working hours (minus breaks) would pass Board muster. As with prior cases, the fact that the employer had never used or threatened to use the policy to combat employee organizing or concerted activity made no difference in the outcome. All employers, but especially those with recent union organizing activity should scour their handbooks and other policies to eliminate overbroad language that could form the basis for unfair labor practice claims.