Legal

Soliciting Is One Tough Cookie

By Jon Hyman

Jul. 2, 2014

Last year, a story went viral about a mom fired from her job for selling her daughter’s Girl Scout cookies at work.

As extreme as this seems, this reaction may not be as outrageous as you might think. In fact, there is a great legal reason to ban Girl Scout cookie sales and other similar solicitations in your workplace — it might prove to be one of your best weapons against a union organizing campaign. The catch is that you need both a sufficiently broad no-solicitation policy, and to enforce it in a nondiscriminatory manner.

A lawfully drafted and sufficiently broad no-solicitation policy prohibits anyone from soliciting during work time and in work areas. To the contrary, an overly restrictive policy would either ban union-related communications on its face or operate to treat union-related communications differently than similar nonunion solicitations.

The former is easy to spot. What does the latter look like?

Consider an employer with a strict no-solicitation policy that ignores Girl Scout cookie sales or March Madness college basketball brackets. If that employer disciplines an employee for engaging in union-related solicitations, has the company enforced its no-solicitation policy discriminatorily?

The answer depends on whether the exceptions are so common that they swallow the rule or are merely isolated incidents.

For example, in United Parcel Service v. NLRB, a federal court concluded that because employees “routinely distributed such materials as fishing contest forms, football pool material, and information about golf tournaments,” the employer could not enforce its no-solicitation rule against union-related distributions.

However, in Cleveland Real Estate Partners v. NLRB, the same court concluded permitting occasional and sporadic distributions did not demonstrate discriminatory enforcement of a no-solicitation rule.

In the meantime, word comes from the National Labor Relations Board that it is looking to rewrite workplace solicitation rules and turn this issue on its head. In the NLRB ruling in Register Guard, the National Labor Relations Board held that an employer’s solicitation or other communication policy can lawfully bar employees’ nonwork-related use of an employer-owned email system, unless, on its face, it discriminates against employees’ exercise of Section 7 rights. Thus, under Register Guard, a policy that prohibits employee use of an email system for “non-job-related solicitations” does not violate the National Labor Relations Act, even if the very nature of that ban includes union-related solicitations.

The NLRB decided Register Guard in 2007, near the tail-end of the Bush-era board. Now it’s 2014, and the Obama-era NLRB is taking a look at Register Guard.

In early May, the NLRB posted a notice asking advocates to submit position briefs on whether Register Guard should be overruled.

By all appearances, the NLRB appears to be looking for a reason to reverse Register Guard and issue a rule under which a facially neutral email policy is nevertheless illegal if one could reasonably read it restricts employees’ rights to engage in protected concerted activity. While this re-imagining of Register Guard would be consistent with the NLRB’s more recent positions in social media and other workplace communication cases, it is nevertheless concerning for employers.

As for me, I am immune to the charms of the Girl Scout cookie. While I love a Thin Mint as much as next person, my son has celiac disease, so I avoid bringing into my home treats with gluten that he can’t enjoy.

For the rest of you, however, consider whether permitting your employees to sell cookies or engage in other innocent solicitations is worth the risk that, if a union organization drive rears its head, you will be left powerless to engage one of your key weapons — the no-solicitation policy.

And keep a close eye on the NLRB for actions that will severely hamper your efforts to limit solicitations in your workplace.

Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at JHyman@Wickenslaw.com.

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