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Anti-Fraternization Policies May Be Affected by Recent Ruling

Many employers, concerned about possible sexual harassment claims arising from romantic relationships between employees, implement anti-fraternization policies to prohibit employees from dating or becoming romantically involved. Such policies, particularly with respect to employees having direct or indirect supervisory authority over others, may help avoid sexual harassment claims. However, a recent ruling by the U.S. Circuit Court of Appeals for the District of Columbia Circuit, suggests that employers who adopt open-ended anti-fraternization policies may be in violation of the National Labor Relations Act.

In Guardsmark, LLC v. NLRB, 2007 WL 283455 (D.C. Cir. 2007), the employer, Guardsmark, a company providing security guard services, distributed a handbook to all employees, including an anti-fraternization rule providing that "You must not fraternize on duty or off duty, date or become overly friendly with the client's employees or with co-employees." A labor union at one of Guardsmark's offices filed an unfair labor practice charge with the National Labor Relations Board (NLRB). The NLRB's General Counsel then issued a complaint, alleging that this rule violated section 8(a)(1) of the National Labor Relations Act (NLRA), which makes it an unfair labor practice for employers "to interfere with, restrain, or coerce employees in the exercise [of their section 7 rights]." Section 7 of the NLRA provides that employees:

shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection ....

The General Counsel contended that Guardsmark's rule discouraged protected labor activity, such as meeting with other employees to discuss terms and conditions of employment. Guardsmark argued that the fraternization rule targeted only personal relationships that "could cloud [a security guard's] judgment," thereby compromising the company's goal of providing reliable security to its clients.

An administrative law judge (ALJ) agreed with Guardsmark, finding that employees would understand both that the rule was "designed to provide safeguards so that security will not be compromised by interpersonal relationships," and that it did not preclude section 7 activity. On appeal, the NLRB agreed with the ALJ that the fraternization rule prohibited only personal entanglements, and that employees would reasonably understand it not to apply to protected activity, but one of the Board members dissented from this decision, arguing that the limitation to personal entanglements, while perhaps the best reading of the rule, was not the only reasonable interpretation.

The union then appealed to the federal appeals court regarding the Board's ruling.

The appeals court overturned the NLRB's decision on this issue, finding that "the Board's decision with respect to the fraternization rule was unreasonable". The court agreed with the union's argument that, if the word "fraternize" in Guardsmark's policy meant nothing more than forming romantic relationships often formed through employee dating, then the word "fraternize" in the policy would have no independent meaning. However, both words were included in the policy, so "fraternize" must mean something different than "dating". The court agreed with the dissenting Board member's observation that "The rule already bars dating and becoming overly friendly with [others], so a reasonable employee might well conclude that the prohibition on fraternizing must apply to something else."

The court noted that the issue was whether employees would reasonably interpret the "something else" to bar them from discussing terms and conditions of employment. The court then consulted numerous dictionary definitions of the word "fraternize", and observed that "every one of these dictionaries lists fraternal association as the primary definition; social and intimate associations are secondary." The court then agree with the dissenting Board member that "employees would reasonably interpret the rule to prevent them from discussing terms and conditions of employment", and the court found the Board's conclusion that employees would understand the rule to prohibit only personal entanglements rather than activity protected by the NLRA to be unreasonable. The court concluded that Guardsmark employees could reasonably believe that the company's fraternization rule prohibited discussion of terms and conditions of employment, stating that "employees could hardly engage in protected activity without fraternizing with each other."

Does this mean that all anti-fraternization policies are now suspect under the NLRA? Fortunately, not. The court suggested a way for the employer to modify its policy to make it enforceable without violating the NLRA. The court stated that:

Since dating and becoming overly friendly include personal entanglements, Guardsmark could have removed the word "fraternize" from the rule altogether. Alternatively, it could have either defined the term to encompass romantic relationships only, or made an exception for protected activity. Either way, Guardsmark could have achieved its legitimate goal without interfering with section 7 activity.

Thus, employers with anti-fraternization policies (or considering adopting such policies) should carefully review their policies and make sure that the do not go too far in prohibiting employees from "fraternizing" and spending time together outside work. Express prohibitions of dating or romantic relationships are still fine, at least under federal law. Please note, however, that some states limit employers' ability to prohibit employees from marrying or forming other types of civil unions.

Employees who meet the definition of "supervisor" under the NLRA are not covered by the Act. Therefore, policies that prohibit them from fraternizing off duty with non-supervisory employees may be lawful, but not necessarily advisable.

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