Once again attacking personnel policies largely designed to comply with other laws, the National Labor Relations Board invalidated certain personnel policies protecting the dissemination of employee health information and personal identifiers. View the full decision by clicking on Costco Wholesale Inc.
In Costco, the Board first found that a policy prohibiting “[u]nauthorized posting, distribution, removal or alteration of any material on Company property” infringed upon employee rights under the National Labor Relations Act by broadly restricting how employees could distribute union and other employee-related materials. Next the Board addressed the employee communications aspects of Costco’s policy and invalidated policy rules that restricted employee speech regarding the terms and conditions of their employment.
The specific policies ruled illegal are typical of those in many, if not most, employee handbooks. Among the invalidated rules were those that forbid employees from discussing or sharing private or otherwise sensitive information such as sick calls, leaves of absences, FMLA call-outs, ADA accommodations, workers’ compensation injuries, employee personal health information, payroll, credit card and social security numbers, employees’ names, addresses, telephone numbers and email addresses.
Finally, the Board struck down Costco’s rule prohibiting employees from electronically posting statements that “damage the Company…or damage any person’s reputation” because, read broadly, it prohibited negative statements about how Costco treated its employees.
We see nothing short of appellate court reversals or remands that would persuade the Board to rethink what appears to be an unwarranted intrusion into employer personnel policies that have survived NLRB scrutiny for decades. Employers who continue to “wait out” this Board therefore invite unwanted Board attention triggered by unfair labor practice charges from unions attempting to organize unrepresented employees and incumbent unions.