The National Labor Relations Board (NLRB) ruled last year that an employer's policy prohibiting off-duty fraternization was lawful. (See PLA, February 6, 2006.) An appeals court recently overturned the Board's decision, sending a clear message that broad bans on employee relationships may cause legal trouble for employers.
LET'S GO TO THE DICTIONARY
The policy in question stated that employees may not "fraternize on-duty or off-duty, date, or become overly friendly with the client's employees or with co-employees." The security services company argued that personal entanglements could cloud a security guard's judgment, so it had a legitimate safety reason for having such a policy.
The District of Columbia Circuit Court agreed, but the policy went too far. As written, the rule could reasonably chill employees from exercising their statutory rights under the National Labor Relations Act (NLRA).
The Board had ruled that, because the word "fraternize" was listed next to two terms referring to romantic relationships, employees could reasonably understand the policy to prohibit only personal entanglements. A dissenting Board member felt that because the policy already covered dating and becoming overly friendly, a reasonable employee could conclude that fraternizing must apply to "something else."
That "something else," said the Circuit Court, could be interpreted as barring them from discussing terms and conditions of employment. The court came to its conclusion after looking up "fraternize" in several dictionaries. They all listed fraternal association as the primary definition, with social and intimate associations being secondary. A labor union, the court pointed out, is a type of fraternal organization. Therefore, employees could reasonably interpret the rule to prohibit them from discussing terms and conditions of employment with each other. (Guardsmark, LLC v. NLRB, DC Cir., No. 05-1216, 2007)
DON'T GO OVERBOARD
The court listed three easy policy fixes for the company to achieve its safety goal without interfering with protected activity.
1. Remove the word "fraternize" altogether, since dating and becoming overly friendly are already listed.
2. Define "fraternize" to encompass romantic relationships only.
3. Make an exception for protected activities.
Example: "Employees may not fraternize…with client's employees or co-employees except as allowed by law, which may include engaging in union