An employee of a Memphis, Tennessee distribution center for Philips Electronics received a written warning at the conclusion of an investigation into a sexual harassment complaint made against him by a co-worker. A note was then placed in his personnel file indicating he was “aware that disciplinary action forms are confidential and should not be shared on the warehouse floor at any time.” The employee was summarily discharged after showing co-workers on the floor the written warning.
This type of note is a smoking gun against a company, since under NLRB precedent, “an employer violates Section 8(a)(1) when it prohibits employees from speaking with coworkers about discipline and other terms and conditions of employment absent a legitimate and substantial business justification for the prohibition.” Yet, Philips Electronics convinced the Administrative Law Judge that the dismissal was lawful by arguing that it did not have a written rule against such discussions nor was it the Company’s policy to prohibit them.
However, the documentation convinced the NLRB that the company maintained an illegal rule against employees discussing disciplinary actions. Specifically, the Board held, “We find that [Philips] maintained an unwritten rule that discipline was confidential and prohibiting employees from discussing discipline on the warehouse floor at any time.” Employers take note – whether your policy is written or unwritten, whether it is company-wide or limited to a single manager, whether it pertains to sexual harassment or any other form of discipline, employees are, with narrow, rare exception, permitted to discuss their discipline and show co-workers their disciplinary write-ups.