An Anti-Fraternization Policy Means One Thing To An Employer But Another Thing To A Court
By Peter K. Newman
I. Introduction
“What’s in a name? That which we call a rose by any other word would smell as sweet”
— from Romeo and Juliet (II, ii, 1-2)
This quote from Shakespeare has often been used to highlight situations when parties appear to go out of their way to create issues over commonly used words. Recently a court engaged in such behavior in striking down an employer’s anti-fraternization policy. This case confirms that employers must carefully draft their workplace policies to ensure that they do not directly or indirectly interfere with employee rights.
II. Guardsmark, LLC v. NLRB, 475 F. 3D 369 (February 2, 2007)
Guardsmark, a nationwide company providing security guard services, included in its employee handbook a section stating that employees must not “fraternize on duty or off duty, date or become overly friendly with the client’s employees or with co-employees.” The National Labor Relations Board (NLRB) rejected a Union unfair labor practice charge challenging the policy finding that the anti-fraternization policy was lawful because employees would reasonably understand the rule to prohibit only romantic personal relationships, rather than any activity protected by the NLRA.
Unwilling to let common sense get in the way of creating a legal issue, the D.C. Court of Appeals disagreed with the NLRB and held that the policy was unlawful. After consulting numerous dictionaries on the meaning of “fraternize,” the court concluded that each source listed fraternal association as the primary meaning, with social and intimate associations as a secondary meaning. Therefore, the court held that Guardsmark’s anti-fraternization policy would have a chilling effect on employees’ rights because they could interpret the rule to prohibit discussion about terms and conditions of employment with their union – a fraternal association as found in the definitions.
The court also noted that Guardsmark’s alleged business justification for the rule – to prevent security break downs caused by interpersonal relationships between guards – could still be achieved without violating the NLRA. The court suggested that Guardsmark either remove the word “fraternize” and defining personal or romantic relationships, or by adding an exception for “protected concerted activities.”
III. Practical Advice
If you think the court was unnecessarily splitting hairs over the meaning of the word “fraternize”, we agree. Even more amazing, there was no evidence that any employee ever interpreted the anti-fraternization policy in the way the court interpreted it. Finally, given that the term “protected concerted activity” has no firm definition, the Court’s suggestion that Guardmark fix its policy by adding an exception for “protected concerted activities” must be rejected because this broad exception would undermine the policy’s objective.
Despite our criticism of the court’s decision, it reaffirms that employers need to be careful in drafting their workplace policies. Here are four simple rules to follow in drafting any policy:
1. do not put anything in your employee handbook or other documents distributed to employees unless you mean it;
2. say only what you mean, and say it clearly;
3. for every policy ask yourself: do I really need to say this?; and
4. analyze every possible interpretation of the policy from a devil’s advocate point of view and then revise the policy language if any of those interpretations is different from what you intended.
If you have any questions about this eBriefing or would like to suggest a topic for a future eBriefing, please contact us.
Finally, mark your calendar for the April 24, 2007 “HRCI Credit on Wheels” co-sponsored by the Greater Cincinnati Human Relations Association (GCHRA), the Butler/Warren Society of Human Resources (Butler/Warren SHRM), and Wood & Lamping LLP. We have chartered a bus to take local SHRM members to Columbus for SHRM’s annual legislation day. On the trip to Columbus, I will be speaking on “Today’s Employee Claims and Effective Ways To Avoid Them.” On the return trip, Peter Burrell will be speaking on “How To Prevent Your Competitors From Stealing Your Trade Secrets And Key Employees.” We will be sending additional information about this program shortly.
Peter Newman
Office: (513) 852-6028
Cell: (513) 373-5080
Email: pknewman@woodlamping.com
admin @ March 15, 2007