Barran Liebman Alert: NLRB Targets No Solicitation Policy in Retailer's Employee Handbook

Barran Liebman Alert: NLRB Targets No Solicitation Policy in Retailer's Employee Handbook

 by Jose Klein

Among the labor law trends that Barran has chronicled in its Electronic Alerts is the National Labor Relations Board's ("NLRB") expansive interpretation of what constitutes an unlawful restraint on an employee's exercise of his or her rights under the National Labor Relations Act ("NLRA"). On April 26, 2013, the NLRB continued that trend with its decision in Target Corporation, 359 NLRB 103 (April 26, 2013).

At issue in the case was a provision in Target's employee handbook that prohibited solicitations on company premises. Specifically, the provision banned "[s]oliciting, distributing literature, selling merchandise, or conducting monetary transactions" in instances when those activities were done "For personal profit, For commercial purposes, [or] For charitable organizations" not affiliated with company community relations programs.

The Board ruled that the phrase "[f]or commercial purposes" when immediately followed by the phrase "[f]or personal profit" could lead an employee to reasonably construe the policy as a prohibition on "solicitation and distributions for other organizations, such as unions." Consequently, the NLRB held, the policy violated Section 8(a)(1) of the NLRA, which prohibits an employer from interfering with or restraining an employee's exercise of rights guaranteed by the NLRA.

In the decision, the NLRB also affirmed an administrative ruling that the company's dress-code infringed on NLRA rights, and overruled the administrative finding that the company's policy urging employees to alert security when they saw "people you don't know loitering around the team member parking area" violated the NLRA.

For Target, the decision carries immediate consequences. The company must rescind the offending policies in stores nationwide. Additionally, after Target successfully defeated a UFCW local's efforts to organize a Target store in Valley Stream, New York, the NLRB is now requiring a second union vote.

For employers nationwide, the NLRB's decision in Target Corporation underscores the importance of remaining vigilant about employee handbooks and policies. Seemingly innocuous company policies on subjects which, on their face, have nothing to do with union organizing may offend the NLRB's broad readings of Section 8(a)(1). Employers unsure if their policies would withstand the scrutiny of the Board's expansive interpretations are urged to be proactive and conduct a comprehensive legal review of their company handbook.

Read more alerts by Barran Liebman attorneys.

Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. Alerts are not intended as legal advice, but as employment law, labor law, and employee benefits announcements.

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