Once In Violation, Always In Violation

I loved the holiday season.  But if I could look back and point to one part of the 2013 holidays that reallybothered me, it is this:  the incessant Michael Bolton appearances in those Honda commercials.  Every two seconds, every channel.   Michael Bolton rising from a piano at a Honda dealership, or popping up in the backseat of a new Honda.  Like Frankie Valli in that fantasy ice cream shop scene in Grease.    Market studies somewhere have really shown that I’m more likely to buy a new Honda because Michael Bolton is there?  This is where Michael Bolton’s career is?

I digress.  Honda has somewhat bigger problems.  At least one dealer does, as the NLRB began 2014 where it left off in its crusade last year against workplace policies.  Only this time, the NLRB offered a double whammy, by adding to the list of current unlawful policies and finding that an employer violated the law even though the unlawful policies had already been rescinded months before.

In Boch Imports, Inc. d/b/a Boch Honda, an Administrative Law Judge for the NLRB determined that the company’s dress code policy violated the law when it prohibited employees who have contact with the public from wearing “pins, insignias, or other message clothing.”

But the Judge also addressed various social media policies that the employer got rid of in May 2013, including the types of social media policies we’ve addressed in this blog:  prohibitions on being discourteous, disclosing information about other employees, engaging in activities that would have a negative impact on the business, using company logos for any reason, among others.  In fact, the employer revised its handbook in May 2013, and distributed a new handbook correcting certain offending provisions.   Seems to me the employer acted reasonably, particularly when you take into account that the law in this area has been changing with the changing winds almost on a daily basis.

Nevertheless, the Judge ruled:

“Although I originally agreed with counsel for the [employer] that it would not effectuate the policies of the Act to spend time on these allegations which had already been remedied, a careful examination of the Board’s cases convinces me that my initial impression was incorrect.”

So even though the employer no longer had or implemented the allegedly unlawful social media policies (and, therefore, no need for a remedy on that point), the Judge nevertheless found as a formal matter that the employer violated the law, a finding that brings its own consequences.

Employer Take Away:   What should you as an employer take away from this development?

1.         Understand that just because the ball dropped on another year does not mean that the NLRB does not intend to continue its crusade on social media practices and policies.

2.         It is apparently not enough to be diligent in fixing and remedying an apparent prior violation.   Your company must be diligent in making sure your policies and practices don’t violate the law in the first instance.

About Michael Schmidt

Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.