Business-social-media-network--7907818Over the past few years, many employers have found out—the hard way—that the National Labor Relations Board is serious in policing employee handbooks for provisions that the Board believes are “overly broad” under Section 7 of the National Labor Relations Act, which protects employees’ right to engage in protected concerted activity—that is, the right of two or more employees to protest to an employer about terms and conditions of employment. Likewise, a growing number of employers (including non-union ones) have found themselves the subject of unfair labor practice charges alleging that disciplinary action violated employees’ Section 7 rights.

But what if an employee is disciplined pursuant to an overly broad rule, yet the employee was not engaging in concerted activity? That quirky circumstance was the subject of a recent NLRB administrative law judge decision in Tinley Park Hotel and Convention Center LLC and Audelia Santiago, Case No. 13–CA–141609. Perhaps unsurprisingly, the ALJ found that the company violated the law in disciplining the employee, adding yet another layer of complexity to the work rule analysis for employers.

Generally speaking, an employer violates Section 7 of the Act by merely maintaining an overly broad work rule. Discipline imposed pursuant to such a rule is unlawful if the employee is engaging in protected concerted activity or conduct that otherwise implicates the concerns underlying the Act—meaning activity that is protected, but not necessarily concerted. An employer can offer an affirmative defense that the employee’s conduct actually interfered with the employee’s own work or the work of other employees, or that the employee’s conduct otherwise actually interfered with the employer’s operations, and that the interference, rather than the violation of the rule, was the reason for the discipline.

In the leading case on this area of the law, The Continental Group, 357 NLRB No. 39 (2011), the employer maintained an overly broad off-duty employee access rule and used the rule to discipline an employee who was coming onto the premises in his off hours to sleep and loiter. The Board, however, found no violation for the discipline because while the rule was overly broad, the employee was not engaged in protected concerted activity or conduct which otherwise implicates the concerns underlying the Act when he was loafing around during his off days.

Tinley Park Hotel, however, provides a good example of when such discipline is unlawful. In this case, a banquet server at a hotel worked a marathon day beginning at 5:30 a.m. and extending until 7:30 p.m. Eventually, she and some of her coworkers took a break and began taking selfies, which they posted to Facebook. The Facebook dialogue included back and forth between the employee and her Facebook friends about her work that day, “in particular how hard [the employee] and other employees had been working. [The employee] stated she had been working like a ‘slave’ and noted that she had no time to play games like she used to do.” The employer caught wind of these Facebook posts, and thought that they painted the company in an unflattering light. The employee was terminated for violating company rules against using a cell phone at work, and a rule which broadly prohibited employee “disloyalty” and defined such “disloyalty” as an employee “disparaging or denigrating the food, beverages, or services of the company, its guests, associates, or supervisors by making or publishing false or malicious statements.”

The starting point for the ALJ was that the “disloyalty” rule itself was overly broad. Citing to recent Board case law, the ALJ stated that the Board has found similar rules unlawful on the basis that the rule “reasonably could be construed to prohibit protected activity, such as coworkers discussing with one another the complaints they have about their supervisors.” After finding the rule was overly broad, the ALJ then turned to the discipline, holding that while the Facebook posts were not concerted activity, the posts were still protected because “employees’ complaints about their hours of work, including heavy workloads, long have constituted protected activity.” As a result, the discipline was unlawful. The employer defended itself by arguing that the prohibited use of the cell phone—a lawful work rule—was the reason for her termination. The ALJ, however, was unconvinced that the employee was terminated solely for the cell phone violation, and to the extent that both reasons were behind the discharge, the ALJ found that “an employer does not escape liability for an unlawful discharge because it asserts other, lawful reasons for the same disciplinary action. The fact that one reason for a disciplinary action is lawful in no way diminishes the fact that the other reason was unlawful.” Finally, the employer presented no evidence that the activity interfered with operations.

The takeaway of Tinley Park Hotel for employers is that discipline should not be imposed pursuant to “questionable” work rules if the employee conduct conceivably involves protected activity—concerted or not. After all, this case likely would have turned out differently had the employer stuck to disciplining the employee only on the basis of using the cell phone at work. But by meting out discipline under a shaky work rule, the employer opened the door to the NLRB’s convoluted analysis of work rules and protected activity, which rarely turns out well for an employer.