Employment, Benefits & Labor

Action Item:  Recent guidance provided by the National Labor Relations Board is a valuable reminder that employers should carefully review their employee handbooks and other policies to ensure compliance with the National Labor Relations Act (“NLRA”).

On March 18, 2015, National Labor Relations Board (“Board”) General Counsel Richard F. Griffin, Jr. issued a two-part report (available here) reviewing recent Board decisions concerning employee handbook rules.  Employers and human resources professionals should carefully review their employment policies in light of this Board guidance.

The first part of the report discusses the Board’s position on eight specific categories of common handbook rules: (1) confidentiality; (2) conduct toward the company and supervisors; (3) conduct toward fellow employees; (4) interaction with third parties; (5) use of company logos, copyrights, and trademarks; (6) photography and recording; (7) employees leaving work; and (8) conflicts-of-interest.  Within each category, the report provides specific examples and explanations of why specific rules are lawful or unlawful.  For example, in the context of confidentiality rules, a rule instructing an employee to “[n]ever publish or disclose [the Employer’s] or another’s confidential or other proprietary information. Never publish or report on conversations that are meant to be private or internal to [the Employer]” was deemed unlawful because it was overly broad, but a rule stating that “[m]isuse or unauthorized disclosure of confidential information not otherwise available to persons or firms outside [Employer] is cause for disciplinary action, including termination” was lawful.  In the context of employee conduct, the Board found that a rule requiring employees to “be respectful to the company, other employees, customers, partners, and competitors” was unlawful, but a rule prohibiting “rudeness or unprofessional behavior toward a customer, or anyone in contact with” the company was lawful.  Drawing upon recent Board decisions, the report identifies many other such rules and gives explanation and guidance regarding its determinations.

The second part of the report discusses specific handbook rules addressed in a recent unfair labor practice charge against Wendy’s International, LLC.  In that case, the Board concluded that a number of Wendy’s handbook rules were unlawfully overbroad, including a rule barring reproduction of the handbook (which the Board found to infringe on an employee’s NLRA § 7 right to discuss their wages and other terms and conditions of employment with others) and a rule barring any discussion of company business or policies on social media (which the Board also found to infringe on an employee’s § 7 rights).  The report discusses the Board’s rationale for its conclusions in the Wendy’s case and provides the modified rules agreed to by Wendy’s pursuant to a settlement agreement.