To lower the risk of getting sued for sexual harassment, many companies have adopted nonfraternization policies, often focused on ensuring that romantic relationships, particularly those involving supervisors and their subordinates, don’t create a conflict of interest. Sometimes these policies are designed to avoid conflicts of interest with customers.
Some nonfraternization policies, however, apply to a much wider range of employee conduct, perhaps even barring employees from having outside friendships with co-workers. But a new federal appeals court decision found that a broad policy violated federal labor relations law, so union and non-union employers that have nonfraternization policies will need to review them to ensure they’re narrowly drafted. We’ll explain.
Handbook Rule Challenged
Guardsmark LLC, a security guard company, distributes a handbook to its guards. One handbook rule states that guards “must NOT…fraternize on duty or off duty, date or become overly friendly with the client’s employees or with co-employees.”
The union representing the guards complained to the National Labor Relations Board (NLRB) that this rule discouraged employee activities that the National Labor Relations Act (NLRA) protects. The NLRA guarantees employees, whether union or not, the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” According to the union, Guardsmark’s nonfraternization rule would interfere with protected activities such as meeting with other employees to discuss the terms and conditions of their employment or union matters.
Guardsmark contended that the rule didn’t violate the NLRA. According to the company, the rule narrowly targeted personal entanglements that could cloud a security guard’s judgment and thus compromise the company’s goal of providing reliable security services.
The NLRB agreed with Guards- mark, ruling that the policy didn’t violate the NLRA. The board found that employees would read the nonfraternization rule in the context of their duties to protect individuals and property, and they would therefore understand that the rule was legitimately aimed simply at making sure personal relationships didn’t compromise security. The union then asked the court to review the NLRB’s decision.
Does the Rule Violate the NLRA?
The appeals court explained that to determine whether a work rule violates the NLRA, the NLRB has traditionally looked at whether the rule would tend to chill employees in the exercise of their NLRA rights. This involves a two-part test. First, does the rule explicitly restrict protected activity? If so, the rule violates the NLRA. Second, even if there’s no such restriction, the rule will violate the NLRA if any of these three conditions is satisfied: 1) employees would reasonably interpret the rule’s language to prohibit protected activity; 2) the rule was issued in response to union activity; or 3) the employer has applied the rule to restrict protected activity.
Employer’s Ban Too Broad
Here, while Guardsmark’s rule did not expressly restrict protected activity, the court found that employees could reasonably understand the rule to “sweep much more broadly than prohibiting only personal entanglements with clients and coworkers.” Because the policy explicitly bars dating and becoming “overly friendly,” its caution not to “fraternize” must mean something other than merely prohibiting dating or becoming overly friendly. And, said the court, employees could reasonably interpret that “something else” to mean they’re barred from discussing their employment terms and conditions. In fact, the court pointed out, the thesaurus lists the words “associate,” “cooperate,” “join,” and “unite” as synonyms for the word “fraternize.”
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The court also explained that even if Guardsmark had a legitimate interest in banning some fraternization—to ensure it could deliver reliable guard services—it could have achieved that goal with a rule that was more narrowly tailored. For example, Guardsmark could have defined fraternization to encompass romantic relationships only, or it could have expressly exempted protected activity from the reach of the policy.
What to Do Now
Because of this decision, if you have a nonfraternization policy or are considering adopting one, it is important to ensure that you don’t run afoul of federal labor law. Ask yourself these questions:
- Does the policy state that it prohibits protected activity, such as discussing work or union matters? If so, it violates the NLRA, and you should go back to the drawing board.
- Could the policy be interpreted to prohibit protected activity? Determine whether employees could understand the policy to reach a broader range of conduct than you intend.
- Is there a narrower way to draft the policy? Unless it is crystal clear that your policy doesn’t reach protected activity, it is wise to add language stating that the policy does not apply to employee rights protected by the NLRA.
A sample nonfraternization policy that employers can tailor to their needs is available on our website. Online subscribers can link to the new case from the online version of this article.
1 Guardsmark LLC v. National Labor Relations Board, U.S.C.A. D.C. Cir. No 05-1216, 2007