In Boch Imports, Inc., the National Labor Relations Board (NLRB) found that a car dealership violated the National Labor Relations Act because its social media and dress code policies were overbroad and interfered with employee rights to engage in protected, concerted activity.
The Board noted that the dealership’s social media policy required employees to identify themselves when posting comments about the employer and prohibited use of the dealership’s logos in any manner.
The dealership’s dress code policy prohibited employees who had contact with the public from wearing pins, insignias, or other message clothing.
During the NLRB’s processing of the underlying unfair labor practice charge, the employer worked with the regional office to bring its handbook policies into compliance; it removed several unlawful policies, except the dress code, and issued a new handbook to all employees.
Despite those changes, the Board found that the rescinded policies could still provide the basis for violations because the employer had not given notice to employees that it was revising the handbook due to unlawful policies and that it would not interfere with employees’ Section 7 rights; under the Board’s repudiation criteria, that omission meant the employer had not effectively repudiated the prior misconduct.
To dissenting Member Johnson, the employer’s cooperation with the regional office should have weighed in its favor, and he cautioned against applying repudiation criteria with overly technical precision; he argued that encouraging employers to work with the Agency is the quickest way to achieve handbook compliance.
Article by Erin Fowler, courtesy of the Franczek law firm, and commentary by Don Phin, Esq., Vice President of Strategic Business Solutions at ThinkHR, who has decades of experience in HR and employment practices litigation.
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Frequently Asked Questions
What does it mean for an employer to "repudiate" unlawful conduct?
Repudiation generally means the employer clearly disavows the unlawful policy and notifies employees that such conduct will not recur.
Will replacing a handbook automatically prevent liability?
No; simply issuing a revised handbook is not always sufficient unless the employer effectively notifies employees and disavows the prior unlawful provisions.
How can employers reduce the risk when updating policies?
Employers should clearly communicate changes, explain that prior unlawful provisions are rescinded, and seek guidance to ensure the new policies respect employee rights.
Are all dress code restrictions unlawful?
No; dress codes that are narrowly tailored to legitimate business needs and do not target protected expression are more likely to be lawful.