NLRB Judge Finds Workplace Civility Policy Unlawful

As we reported on August 3, the National Labor Relations Board’s (“NLRB“) Stericycle decision created a new standard for examining workplace rules and handbook policies. A mere eight days after the decision was announced, on August 10, an NLRB administrative law judge has ruled that applying the new standard, Starbucks must rescind its “How We Communicate” handbook policy. It must also notify all United States employees by text messages, social media postings, and email that its policy was illegal. Finding a handbook policy illegal which uses a standard respectful communication approach demonstrates the difficulty employers will have defending existing policies.

The policy examined was (Starbucks refers to employees as “partners”): “Partners are expected to communicate with other partners and customers in a professional and respectful manner at all times. The use of vulgar or profane language is not acceptable.” Interpreting the language from the perspective of an economically dependent employee intending to engage in concerted activity, the judge found that while upholding basic civility was a legitimate business interest, in this case the handbook policy as applied was overly broad, vague, and susceptible to application against legally protected activity. The judge reasoned workers could think it applied to activity when they were off the clock.

Leech Tishman will be hosting a Fall 2023 presentation on the workplace impact of recent Supreme Court and NLRB decisions. Stayed tuned for more information.

If you have any questions about the NLRB’s ruling and how it may affect you as an employer, please contact Philip A. Toomey, the National Chair of Leech Tishman’s Employment & Labor Practice Group. Philip can be reached at 424.738.4400 or ptoomey@leechtishman.com.

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Leech Tishman Fuscaldo & Lampl, Inc. is a national, full-service law firm dedicated to assisting individuals, businesses, and institutions. Leech Tishman offers legal services in business restructuring & insolvency, construction, corporate matters, employment & labor, estates & trusts, intellectual property, litigation & alternative dispute resolution, and real estate. In addition, the firm offers a wide range of legal services to clients in the aviation & aerospace, cannabis, emerging cyber technologies, energy & natural resources, entertainment & sports, healthcare, hospitality, and life sciences industries. With offices in Los Angeles, Leech Tishman also has offices in Chicago, Philadelphia, Pittsburgh, Sarasota, Washington, D.C., and Wilmington, DE.