The Board majority found the rule at issue here (in Guardsmark): “While on duty you must NOT … fraternize on duty or off duty, date or become overly friendly with the client’s employees or with co-employees” to be similar to a rule in Lafayette Park Hotel, 326 NLRB 824 (1998), enfd 203 F.3d 52 (D.C. Cir. 1999) which stated “Employees are not allowed to fraternize with hotel guests anywhere on hotel property.” A limited dissent felt that Lafayette Park Hotel‘s rule was too broad and so was this one. I see significant differences in the two cases.
- Lafayette Park Hotel is about employee-guest relations, and might reasonably implicate questions of adequate responsiveness to guests; Guardsmark is about relations between Guardsmark employees and between Guardsmark Employees and Guardsmark client employees.
- The Lafayette rule regulated only conduct at the workplace. The Guardsmark rule purports to regulate on- and off-duty conduct regardless of location.
- Lafayette used the phrase “fraternize”, which when used by itself is usually taken to mean “hang out”. The Board felt that “in context, the rule here is reasonably understood as prohibiting personal entanglements, rather than activity protected by the [National Labor Relations] Act.” Actually, it is pretty clear that this rule is meant to sound much stronger than the rule in Lafayette was meant to sound. It is significantly broader in the ways already mentioned, and its significantly broader in its description of the prohibited conduct. The rule says fraternize, adds date, and then adds “become overly friendly”. That phrase in particular is, in First Amendment terms, both overbroad and vague. From reading it, one has no idea of what sort of conduct is prohibited, and one senses that almost anything could be prohibited.
The Board attempts to justify this because of “heightened security concerns”. Yes, I’m sure a security contractor company can increase security by prohibiting friendships. Spartans and every army ever notwithstanding, security forces are just much more secure when their employees barely know the people they work with.
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