In recent years the National Labor Relations Board (NLRB) has aggressively sought to emphasize that its reach extends beyond solely unionized workforces. On March 18, 2015, NLRB General Counsel Richard Griffin released a 30-page report that provides labor lawyers and HR professionals guidance on what the General Counsel contends is – and is not – a lawful employee handbook rule under the National Labor Relations Act (NLRA). The General Counsel’s report makes clear just how broadly the Board applies its rules, finding fault in a number of common-sense workplace practices regarding confidentiality, criticism of the company, misconduct, communication with the public or the media, conflicts of interest, and a variety of other topics. Non-union employers may be asking, “Why do I care?” But the NLRA applies to every employer (at least those engaged in “interstate commerce,” which is almost everyone).
Virtually anyone – individual employees, union organizers or other non-employees – can (and does) file Board complaints, and one of the first things the NLRB’s investigator will ask you for is your policies. Even if the investigator concludes the charge is without merit, if you are “maintaining” overly broad policies, you may have a fight with the NLRB on your hands – and at the very least you will face a demand to modify the policy and post a notice informing employees of your transgression and your commitment to upholding employee rights to participate in protected, concerted activity. If you’ve got a union lurking (or campaigning), that’s like free (and forced) advertising, telling employees why they need a union.
We’ve written about the NLRB’s scrutiny of employer rules on social media use and off-duty access, but this report is a “one stop shopping” trip for purposes of NLRA compliance. The report (available here) provides real-life examples of allegedly unlawful and lawful policies and the reasoning behind the decisions. And it provides (starting at page 26) what some might view as “model” policies prepared by Wendy’s International LLC and the NLRB pursuant to a Board settlement agreement. You may not like – or decide to adopt – the stance that the General Counsel has taken on these policies, but at least you (sort of) know his position on many handbook policies.
Topics addressed, and a few of the more interesting points to ponder, include the following. Note that some of these “good-bad” dichotomies are overly simplified, since there are some apparent contradictions in the report that the General Counsel says must be resolved through an analysis of the “context” of the language within the policies as a whole.
- Confidentiality policies:
- Bad: Prohibitions on discussing “employee information” or “proprietary or confidential information,” or disclosing “details about work matters” or the employee handbook itself.
- Good: Prohibitions on disclosure of “business ‘secrets,’” confidential financial data, or other non-public proprietary company information. We recommend a clear, specific definition of confidential information.
- Conduct toward management:
- Bad: Prohibitions against “disrespectful,” “negative,” “inappropriate,” or “rude” conduct; “chronic resistance to proper work-related orders”; or employee criticism of an employer. Also cited are prohibitions on actions that would harm the employer’s reputation. Even “false” or “defamatory” criticism may not be prohibited, unless it is “maliciously false” (i.e., made with knowledge of falsity or reckless disregard for the truth).
- Good: Requiring employees to be “respectful and professional toward co-workers, clients, or competitors,” but not to management. Requiring employees to “work in a cooperative manner” with management, co-workers, customers and vendors. Prohibitions on conduct aimed at disparaging the employer’s product (as opposed to conduct critical of an employer’s labor policies or working conditions).
- Conduct toward co-workers:
- Bad: “Don’t pick fights online”; prohibitions on “insulting, embarrassing, hurtful or abusive comments” and “defamatory” or “otherwise inappropriate comments” about co-workers.
- Good: Prohibitions on “harassment,” “inappropriate gestures,” or “violent, discriminatory, abusive, offensive, demeaning, or otherwise unprofessional messages.” (The ambiguous terms are couched with other serious misconduct.)
- Conduct toward third parties:
- Bad: Prohibitions on speaking with the media, government agencies, or other third parties about wages, benefits, or other terms and conditions of employment.
- Good: Prohibitions against speaking on behalf of the employer.
- Use of company logos, copyrights, and trademarks:
- Bad: Prohibitions that bar use of the company logo and trademarks or advertising.
- Good: Policies that require compliance with intellectual property law, including its allowance of “fair use” of copyrighted materials. (“Fair protected use” includes using the company name and logo on picket signs and leaflets.)
- Restrictions on photography and recording:
- Bad: Banning use or possession of personal cameras or recording devices while “at work” or “on duty.” Employees must be permitted to use photography and recordings in furtherance of their protected, concerted activity while on breaks or other non-work time.
- Good: Rules banning photography in the context of other protectable interests, such as patient privacy.
- Miscellaneous unlawful policies:
- Restricting employees from leaving work (even non-represented employees have a right to strike or “walk off the job”);
- Conflict of interest rules against engaging in “any action that is not in the best interest of the Employer.”
- No-distribution rules that broadly ban distribution of “literature” in work areas. In light of Purple Communications, 361 NLRB No. 126 (2014), these policies should be revised to “carve out” permissible use of email communication for protected solicitation and distribution.
The General Counsel’s report makes clear that employer policies need not actually result in any adverse action against an employee for the NLRB to take the position that the rule is unlawful. If employees would reasonably construe the rule’s language to have a “chilling effect” on their concerted, protected activity, it is overly broad. Moreover, rules can be challenged based on their reading in context. Vague and ambiguous: bad; specific with examples: good. After the General Counsel’s report, employers can’t say they weren’t warned. All employer policies should be reviewed by a labor lawyer familiar with how sensitive the Board is to the potential, regardless how slight, that protected concerted activity might be impacted.