Court Gives Common-Sense Relief on Workplace Conduct Policies

By Scott Brutocao

As most employers know, workplace conduct policies are minefields.  Prohibiting employees across-the-board from badmouthing the company, for example, earns a quick unfair labor practice charge under the National Labor Relations Act.  Texas employers received some common-sense clarifications on employee handbooks this summer from Texas’ highest federal court, providing employers with some assurances that requiring that employees “maintain a positive work environment,” “treat others with respect,” and refrain from “arguing or fighting” will not be ruled an unfair labor practice.  However, the same court ruled that a blanket ban on recording devices in the workplace is indeed an unfair labor practice.  The decision, T-Mobile USA, Inc. v. NLRB, can be found here.

In order to understand why the ruling is significant, it’s important to understand the National Labor Relations Act (NLRA), which applies to both unionized and non-unionized workplaces. It is an unfair labor practice under the NLRA to “interfere with, restrain, or coerce employees” in their rights under the law, which allows them to engage in not only collective bargaining, but also in “concerted activities” for their “mutual aid or protection.”  These rights allow employees to discuss common interests in the workplace, to engage in protests, and to be critical of their employers, within limits.  Employer policies (usually social media policies, but also workplace conduct policies) have come under fire as prohibiting conduct that would “chill” a reasonable employee from exercising his or her NLRA rights.  For example, an employer may not impose a blanket ban on employees speaking negatively about their employer, as employees have a right to do this, within certain limits, under the NLRA.

The recent case, which was decided by the appeals court over all federal courts in Texas, had to do with T-Mobile’s employee handbook, which (1) expected employees to “maintain a positive work environment”; (2) prohibited “[a]rguing or fighting,” “failing to treat others with respect,” and “failing to demonstrate appropriate teamwork”; (3) prohibited access to electronic information by non-approved individuals; and (4) prohibited all photography and recording at the workplace without supervisor approval.  All four policies had been struck down by the NRLB, the agency that enforces the NLRA, and T-Mobile appealed to the Fifth Circuit Court of Appeals, which affirmed T-Mobile’s right to have the first three policies without concern about violating the NLRA.  The court agreed, however, that the fourth policy violated employees’ rights under the NLRA.


The short summary is this:  general policy statements that employers expect employees to “be nice,” when made in the context of general workplace civility policies, will not violate the NLRA.  This is a very positive development from employers, many of whom had complained that the NLRB had been so zealously focused on employee NLRA rights that it was using a hyper-technical reading of employer policies to strike down anything that might conceivably implicate NLRA rights.  The court said that this is not the proper method of analyzing employment policies.  The court said that the NLRB must “refrain from reading particular phrases in isolation” and “must not presume improper interference with employee rights.”  The appropriate inquiry is not whether a policy “could conceivably be read to cover” protected rights, but rather whether “a reasonable employee reading the rules would … construe them to prohibit conduct protected by the [NLRA].”

What follows is a summary of each policy and the court’s analysis.

1. The “positive work environment” policy

T-Mobile’s policy stated as follows:
[T-Mobile] expects all employees to behave in a professional manner that promotes efficiency, productivity, and cooperation.  Employees are expected to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers, and management.

This policy had originally been struck down by a lower ruling, which held that a reasonable employee would read the language to discourage “candid, potentially contentious discussions of unionizing.”  The court held this was unreasonable.  In a win for employers, the court said “context matters.”  The context of the policy was working, nor organizing, and in that context, the rule addressed a normal workplace, on a normal workday.  Thus a reasonable employee of T-Mobile would interpret it as a rule requiring professional manners, and would not perceive this as restricting the right to engage in contentious concerted activity.

2. The “commitment to integrity” policy

The relevant parts of the “commitment to integrity” policy read as follows:
At T-Mobile, we expect all employees, officers and directors to exercise integrity, common sense, good judgment, and to act in a professional manner. We do not tolerate inconsistent conduct. While we cannot anticipate every situation that might arise or list all possible violations, the acts listed below are unacceptable…

 Arguing or fighting with co-workers, subordinates or supervisors; failing to treat others with respect; or failing to demonstrate appropriate teamwork.

This policy had been originally struck down by a prior ruling due to a concern that it would “inhibit robust discussion of labor issues.”  Rejecting that ruling, the court said that this was just a “common sense civility guideline” where a reasonable employee would understand it to refer to concepts such as theft, fraud, dishonesty, and sleeping on the job, rather than anything that could be considered protected.

3. The “access to information” policy

T-Mobile’s information confidentiality policy stated:
Users may not permit non-approved individuals access to information or information resources, or any information transmitted by, received from, printed from, or stored in these resources, without prior written approval from an authorized T-Mobile representative.

Employees are allowed under the NLRA to share wage and benefit information with each other.  A lower ruling had rejected T-Mobile’s policy because of a concern that employees would interpret it as prohibiting sharing wage and benefit information in email.  Again, the court rejected this concern.  The court observed that the policy’s intro stated that it applied to “all non-public T-Mobile information,” and in a nice bright-line rule for employers, the court stated that where a company policy prohibits the disclosure of non-public information, courts will presume that a reasonable employee would understand that they could still disclose information that may be legally used in protected activity, such as wage and benefit information, as long as the policy does not explicitly prohibit them from doing so.

4. The “no recording” policy

T-Mobile’s recording policy stated:
To prevent harassment, maintain individual privacy, encourage open communication, and protect confidential information employees are prohibited from recording people or confidential information using cameras, camera phones/devices, or recording devices (audio or video) in the workplace. Apart from customer calls that are recorded for quality purposes, employees may not tape or otherwise make sound recordings of work-related or workplace discussions. Exceptions may be granted when participating in an authorized [T-Mobile] activity or with permission from an employee’s Manager, HR Business Partner, or the Legal Department. If an exception is granted, employees may not take a picture, audiotape, or videotape others in the workplace without the prior notification of all participants.

The court was very practical in this part of the opinion.  Because the policy was so unequivocal, the court stated that it could think of at least one thing that an employee could do, which would be protected under the NLRA, that this policy would not allow:  an off-duty employee could not even photograph a wage schedule posted on a corporate bulletin board.  Because a reasonable employee would interpret the policy to prohibit even this type of protected activity, the court agreed that the policy was illegal.


This appeals court decision is not a groundbreaking change in the law, but it should give employers confidence to draft their policies according to their particular needs.  The key takeaway from this decision is that courts will not be quick to find violations of the NLRA, but will rather read personnel policies in context and apply a common-sense analysis of whether the policies “chill” employees’ right to complain, protest, or share information with each other.  However, employers should still read their workplace conduct, social media, and confidentiality policies to ensure that they have not clearly impeded their employees’ protected rights.  And, if you want to prohibit recording or photographing in the workplace, you will need to be very careful on how broadly your restriction could be interpreted.  In all cases, it is best to have your policies reviewed by experienced employment counsel.