Add Macy’s to That List, Not Your Shopping List

September 15, 2015

Christina Alabi

NLRB

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Macy’s joins the growing list of employers that have violated Federal labor law.  Macy’s recently joined this list due to policies in its Code of Conduct (the “Handbook”).  A National Labor Relations Board Administrative Law Judge (“ALJ”) found these policies overbroad under the National Labor Relations Act (the “Act”).

In short, the Act gives employees the right to form or join a union, engage in protected, concerted activities to address or improve working conditions, or refrain from engaging in these activities.  Macy’s Handbook contained a number of policies concerning confidentiality, employee privacy, intellectual property, and government investigations.

The General Counsel and Macy’s were at opposite ends of the spectrum regarding whether these policies as written violated the Act.  Notably, however, these policies were not implemented in response to union activity or applied in any manner to restrict an employee’s rights under the Act.

Nonetheless, the ALJ agreed with the General Counsel, finding that employees would reasonably construe these policies in the Handbook as restricting their rights under the Act.

Namely, the ALJ found Macy’s maintained overly broad rules that:

1)     restricted its employees use of information regarding fellow employees, and customers;

2)     restricted employees’ use of the Macy’s logo; and

3)     required employees to notify the HR Department prior to participating in a government investigation.

The United Food and Commercial Workers Union, Local 1445 (“UFCW”) filed the underlying unfair labor practice charge in March 2014.  A month after it filed the charge; Macy’s issued a savings clause to revise the Handbook.  The ALJ found the principal shortcoming of Macy’s “attempted saving clause” was that it was written in a generic manner, while the unlawful restrictions were very specific.  Thus, the ALJ found this attempt ineffective to repudiate the unlawful Handbook provisions.

Although the UFCW filed the charge solely upon the Saugus, Massachusetts Macy’s store, the impact of the ordered remedy will be felt by Macy’s stores nationwide from coast to coast.  First, the ALJ ordered Macy’s to rescind all unlawful provisions of the Code in every store and notify all of its employees nationwide that these policies were no longer in effect.  The ALJ also ordered Macy’s to post a notice at each store for 60 days advising employees that Macy’s violated Federal labor law and informing employees of their Federal labor law rights.  To put this in perspective, Macy’s operates about 800 Macy’s stores in 45 states, the District of Columbia, Guam and Puerto Rico, with thousands of employees.

Contrary to popular belief, the Act is applicable to most private sector employers including department stores like Macy’s, regardless of the presence or absence of a union.  This growing trend of finding seemingly standard provisions in employee handbooks unlawful continues to affect several employers.  The decision could still be appealed but it is certainly worth noting for all employers.  Several employee handbooks contain similar rules and the absence of one word or inclusion of a single yet powerful phrase can make the difference between finding a handbook provision lawful or unlawful.

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Post by Christina Alabi

Having diverse and in-depth experience in both litigation and human resources and employment law, Christina Alabi concentrates her practice in various areas of traditional labor and employment law, commercial litigation and intellectual property litigation.

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