NRLB Redefines 'Your Own Time' to ban off-duty coworker 'fraternization'

[Marc]

The U.S. National Labor Relations Board (NLRB) has ruled to ban off-duty worker 'fraternization,' at the employer's discretion. So getting together for a beer after work can now be prohibited by the boss. With workers so commonly producing some of their best work 'after hours,' even at home or in restaurants/bars, will this ruling come back to bite employers? Can they really stop you from talking with your cubicle neighbor on the bus home?

 

[Lyn N Iles]

This sounds like some sneaky attempt for unscrupulous bosses to ban things like union meetings to me!

I may be wrong, but surely this is contrary to Article 16 of the American Convention on Human Rights, 1978:

"Article 16. Freedom of Association
1. Everyone has the right to associate freely for ideological, religious, political, economic, labor, social, cultural, sports, or other purposes.
2. The exercise of this right shall be subject only to such restrictions established by law as may be necessary in a democratic society, in the interest of national security, public safety or public order, or to protect public health or morals or the rights and freedoms of others.
3. The provisions of this article do not bar the imposition of legal restrictions, including even deprivation of the exercise of the right of association, on members of the armed forces and the police."

A move like this would, I'm sure, be vigorously legally challenged in the U.K. and just about any European country - and rightly so IMHO!

Lyn

 

[RosieA]

I may be wrong, but surely this is contrary to Article 16 of the American Convention on Human Rights, 1978:Lyn

Wow, Lyn, I'm impressed that you have this document handy and can quote from it! Is this something you use on your job, or just part of your being a well informed citizen of the world? (Which I am obviously not, because I'm not sure I even knew this document existed)

Isn't it ironic that US companies are promoting social responsibility in other countries and yet the NLRB is allowing restrictive rulings like this one.

 

[Lyn N Iles]

Well, Rosie A, I'd like to claim that I'm a well informed world citizen, of course!

However, recently during the course of my job I had reason to look up the United Nations Convention on the Rights of the Child. So when I saw Marc's thread, this got me thinking.

All the rest is "Google", as they say!

Lyn

 

[RosieA]

I never fail to be impressed by the breadth of knowledge one finds in The Cove.

 

[Jim Wynne]

The U.S. National Labor Relations Board (NLRB) has ruled to ban off-duty worker 'fraternization,' at the employer's discretion. So getting together for a beer after work can now be prohibited by the boss. With workers so commonly producing some of their best work 'after hours,' even at home or in restaurants/bars, will this ruling come back to bite employers? Can they really stop you from talking with your cubicle neighbor on the bus home?

The ruling is outrageous, and won't survive the inevitable civil action. In general though, NLRB actions pertain only to relationships between unions (or employees attempting to organize) and employers, so non-union workers shouldn't be affected by the ruling. There are some states, in fact, that have statutes banning employers from barring lawful off-duty conduct.

 

[chergh - 2008]

This has left me speechless. If this was attempted in the UK there would be outrage, and am fairly certain the goverment would have to legislate this directly into law.

 

[Lyn N Iles]

This has left me speechless. If this was attempted in the UK there would be outrage, and am fairly certain the goverment would have to legislate this directly into law.

The UK government would immediately fall foul of Article 11 of their own Human Rights Act 1998, which is based on the European Convention of Human Rights, chergh.

A Department for Constitutional Affairs study guide on the subject says,

"Article 11: Free assembly and association

3.93 You have the right to assemble with other people in a peaceful way. You also have the right to associate with other people, which can include the right to form a trade union. Restrictions upon these rights must be justified by reference to special reasons and legal tests.

What is freedom of assembly?

3.94 Your right of peaceful assembly includes your individual right to protest in a peaceful way, particularly against the state. You can exercise this right freely provided that, while exercising your rights, you do not commit any wrongful act and you act peacefully and without violence or threat of violence.

3.95 You also have the right not to take part in an assembly against your will.

What is freedom of association?

3.96 Your right to freedom of association includes: the right to form a political party (or other non-political association such as a trade union or other voluntary group); the right not to join and not to be a member of such an association or other voluntary group. This means that an individual cannot be compelled to join an association or trade union, for example. Any such compulsion may infringe Article 11.

Protecting your rights under Article 11

3.97 The state is under a duty to take certain positive steps in order to ensure that you can properly enjoy and exercise your freedoms under Article 11. For example, the state would act in breach of your Article 11 rights if they permitted “closed shop” agreements under which you could be dismissed for refusing to join a trade union at your work place. And the state should protect you from violence if you are engaging in a peaceful demonstration. Recently the European Court of Human Rights has held that a pay system that penalised trade union members was a breach of this right.

Acceptable restrictions on Article 11 rights

3.98 It can be acceptable for the state to restrict your rights under Article 11 in certain situations, which must be narrowly interpreted. To show that a restriction was lawful, the state would have to show that: the interference had a clear legal basis; the aim of the interference was national security or public safety, the prevention of disorder or crime, the protection of health or morals, or for the protection of the rights and freedoms of others; it was necessary (and not just reasonable) to interfere with your rights; the interference went only as far as was required to meet the aim.

3.99 Greater restrictions may be acceptable if you are a member of the armed forces, the police or a civil servant."

If the UK government overturned Article 11, they would then be in breach of the European Convention and might be challenged in the International Court of Justice in the Hague, IMO.

 

[Jim Wynne]

The issue is not quite as cut-and-dried as it appears. Witness this about CALIFORNIA LEGISLATION ADDRESSES MOONLIGHTING AND OTHER LAWFUL CONDUCT OCCURRING DURING NONWORKING HOURS

Effective January 1, 2000, California employees may file claims with the Labor Commissioner “for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises.” Labor Code §96(k).

This legislation was proposed by the California Professional Fire Fighters Association after several of their members claimed that they had been subjected to retaliation for engaging in political activity. The new law states in part that “The Legislature ... finds and declares that allowing any employer to deprive an employee of any constitutionally guaranteed civil liberties, regardless of the rationale offered, is not in the public interest.”

A problem with the new statute, if read literally, is that it gives absolutely no consideration for employers’ legitimate business interests. On its face, the statute prevents employers from taking action against an employee whose lawful activity outside of work is or may be harmful to the employer’s business activity or reputation, such as a private grade school teacher who moonlights as a stripper. The statute also fails to account for situations in which moonlighting may involve conflicts of interest, such as a sales manager moonlighting as a salesperson for the employer’s chief business competitor. Similarly, shouldn’t a law firm be entitled to terminate a word processor who insists on continuing to work as a word processor on weekends for the law firm’s adversary in sensitive litigation involving trade secrets, in circumstances where the employee cannot be insulated from the trade secret and attorney-client privileged information?

Employers may continue to take disciplinary action under Section 96(k) when the non-work activity causes the employee’s work performance to suffer. In that situation, the disciplinary action would be taken not because of the employee’s lawful conduct outside of work but because of its adverse impact on the employee’s job performance. For example, if moonlighting causes the employee to be fatigued and to fail to meet reasonable work requirements, any disciplinary action would be taken not because of the moonlighting but because of its impact on the employee’s work performance. Such action therefore would not run afoul of Labor Code §96(k). In such circumstances employers should timely prepare adequate documentation that the disciplinary action was based on deficient work performance rather than lawful conduct occurring outside of work.

In contrast to Section 96(k) is New York Labor Law §201-d, which prohibits employment discrimination because of political, recreational or union-related activity, or legal use of “consumable products,” provided that such activity is legal and is conducted during nonworking hours off the employer’s premises. The New York statute appropriately makes an exception for such activity which “creates a material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest.” Although Section 96(k) requires that claims be submitted to the California Labor Commissioner for resolution, the California Supreme Court held in Green v. Ralee Engineering Co. that employees may file lawsuits for wrongful termination in violation of “public policy,” founded on “an important public policy based on a statutory or constitutional provision,” or on regulations enacted under such statutory authority. Plaintiffs’ employment attorneys can be expected to rely on Section 96(k) as the basis for asserting wrongful termination public policy claims.

California courts hopefully will construe Section 96(k) to reflect employer’s legitimate business concerns, including the exceptions in the New York statute. Ideally the statute should be amended to incorporate those exceptions. California employers need to exercise the utmost care in taking disciplinary action which could be construed as discrimination because of lawful conduct occurring during nonworking hours away from the employer’s premises. Such care includes thoroughly documenting the reasons for such disciplinary action, so as to enable the employer to successfully defend a claim that the action violated Labor Code §96(k).

 

[Wes Bucey]

From reading the full text of the article in Marc's first link, it seems the "intent" was roughly the same as the "intent" of the armed services ban on "fraternization between officers and enlisted personnel" - to prevent the possibility of a personal personnel relationship causing a security or command breakdown. [I like the juxtaposition of personal and personnel]

The scenarios which come to mind are more "heist caper" than casual or REDACTED relationships between people. There is a whole genre of spy stories where the plot hinges on the handsome or beautiful spy taking advantage of some poor "emily" or "fred" to wheedle state secrets. I agree with others that the current language of this ban will not stand trial scrutiny and will ultimately be amended to be more specific, especially in the subsequent, consequential behavior (stealing cash or intellectual property) targeted for prevention.