Week In Review

May 09, 2016

NLRB Finds T-Mobile Unlawfully Required Employees to "Maintain a Positive Work Environment"

The National Labor Relations Board (NLRB) has held that several employee handbook provisions maintained by T-Mobile were unlawful, in violation of the National Labor Relations Act (NLRA). The NLRB held that T-Mobile’s policy requiring employees "to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships" was a vague, ambiguous directive that would reasonably chill employees in the exercise of their NLRA rights. The NLRB also invalidated T-Mobile’s policy prohibiting employees from recording "people or confidential information using cameras, camera phones/devices, or recording devices (audio or video) in the workplace" and prohibiting employees from making "sound recordings of work-related or workplace discussions." The NLRB found the recording rule unlawful because it did not distinguish between recordings that were protected by the NLRA and those that are not; nor did it exclude recordings made on non-work time, in non-work areas. The NLRB also invalidated the following rules in T-Mobile’s employee handbook: (1) barring disclosure of the employee handbook itself to third parties without consent; (2) requiring employees to maintain the confidentiality of the names of employees involved in internal investigations as complainants, subjects, or witnesses; (3) directing employees who feel they have not been paid all wages or pay owed to them, believe that an improper deduction was made from their salary, or feel they have been required to miss meal or rest periods to contact a manager, an HR business partner, or the company’s "integrity line"; (4) requiring employees to refer all media inquiries to the company without comment; (5) prohibiting employees from using the company’s information or communications resources in ways that could be considered disruptive, offensive, or harmful to morale;(6) requiring employees to sign a restrictive covenant and confidentiality agreement that classifies employee wage and salary information as confidential and proprietary information not subject to disclosure; (7) prohibiting employees from disclosing employee addresses, telephone numbers, and contact information and also prohibiting employees from accessing such information without a business need to do so and without prior authorization or consent; (8) prohibiting employees from making detrimental comments about the company or its customers, products, services, or employees; and (9) requiring employees to sign an acknowledgement form that they will report coworkers who do not comply with work rules.

Vermont Enacts "Ban the Box" Law

Governor Peter Shumlin has signed "ban the box" legislation. The legislation prohibits all employers from asking questions about prior criminal convictions on an initial job application, unless (1) required to do so under state or federal law or (2) when the prospective employee has applied for a job for which the employer must obtain a security or fidelity bond or equivalent bond. Employers are still permitted to ask questions in later stages of the hiring process. The legislation is effective January 1, 2017. Violators are subject to a penalty of $300 for each violation, which would be imposed by the Labor Department. Vermont is the seventh state to implement a state-wide "ban the box" law that applies to both state and private employers.

Federal Court of Appeals Affirms Use of Time Card Rounding

The U.S. Ninth Circuit Court of Appeals held that, despite the technology available in today's workplace, employers are permitted to round employees' time to the nearest quarter-hour. Over 50 years ago, federal regulations endorsed the use of time card rounding practices, acknowledging accuracy and calculation problems created by the largely handwritten ledgers in use at that time. The employer at issue, however, did not use old-fashioned, handwritten ledgers. To the contrary, it used state-of-the art computer systems that were designed to help prevent off-the-clock work. Although the system utilized technology allowing precise, to-the-minute time logging, the employer rounded the time to the nearest quarter-hour when calculating payroll. If an employer is going to use a rounding system it must be very careful to apply the system in a consistent manner that favors neither overpayment nor underpayment. For example, if an employee clocks in at 8:08, the system would round the time to the nearest quarter-hour, which would be 8:15, and the employee would effectively lose 7 minutes of paid time. However, if the same employee clocks in on a different day at 8:07, the system would round the time to 8:00, thus effectively paying the employee for 7 minutes he did not work. The rationale is that — over the long run — the overpayments and the underpayments will even out.