The National Labor Relations Board (“NLRB”) determined that an employer had interfered with its employees’ rights to engage in protected concerted activity because its social media and dress code policies were overbroad. The employer’s social media policy had prohibited employees from using the employer’s logos in any manner and required employees to identify themselves when posting comments about the employer. The dress code policy had prohibited employees who had contact with the public from wearing pins, insignias, or other message clothing. The NLRB’s rulings against these policies were in line with similar, recent NLRB decisions, and thus not unexpected.
What makes this case a cautionary tale for employers is that during the NLRB’s processing of the underlying unfair labor practice charge, the employer worked with the NLRB’s Regional Office to bring its handbook policies into compliance with the NLRB’s interpretation of the National Labor Relations Act (the “Act”). Following guidance from the Regional Office, the employer removed the offending policies from its old handbook, replaced them with new policies, and issued a new handbook that complied with the Act. However, the NLRB found that the rescinded handbook policies still provided a basis for finding violations against the employer. While acknowledging that an employer can “repudiate” prior unlawful conduct, the NLRB held that the employer’s issuance of the new handbook did not constitute an effective repudiation in the absence of explicit notice that the employer was revising the handbook because it had contained unlawful policies and that it would not interfere with employees’ rights in the future. Boch Imports, Inc., 362 NLRB No. 83 (2015),