Over the past several years, employers have struggled to reconcile handbook and other personnel policies with decisions of the National Labor Relations Board. Drawing lines more nice than obvious, the NLRB has invalidated many common handbook policies under the theory they interfere with employee rights to engage in protected, concerted activity under Section 7 of the National Labor Relations Act. Last week, in an effort to inject clarity into a muddled area of law, NLRB General Counsel Richard Griffin issued a memorandum (GC Memo) comparing and contrasting lawful and unlawful employer policies and offering insight into the NLRB’s decision-making rationale.

The GC Memo is divided into two parts: (1) a discussion of various categories of employer rules found to be either lawful or unlawful, and (2) a review of unlawful handbook policies contained in Wendy’s (the hamburger chain) handbook and the lawful modified policies that Wendy’s agreed to implement as a result of a settlement agreement with the NLRB. 

Employer Policies “Frequently at Issue”

The first part of the GC Memo addresses eight categories of employer rules ranging from confidentiality to conflicts of interest. Applying the benchmark Lutheran Heritage test (343 NLRB 646), the GC Memo compares and contrasts lawful and unlawful employer policies, the outcome of which depends on whether “employees would reasonably construe” the policy to prohibit the right to engage in protected, concerted activity. Policies found to be vague or overbroad fall on the unlawful side of the line, such as the following:

• Do not make ‘insulting, embarrassing, hurtful or abusive comments about other company employees online,’ and ‘avoid the use of offensive, derogatory, or prejudicial comments.’

According to the GC Memo, this policy unlawfully limits employee discussions of unionization and other protected concerted activity because the contentious nature of such topics could lead to such comments.

Other policies, however, may survive depending on context. For example, the GC Memo considers the following policy lawful:

• No ‘use of racial slurs, derogatory comments, or insults.’

In isolation, a broad ban on derogatory comments might be unlawful. In this case, however, the rule survived because it was located in a section of the handbook addressing unlawful harassment and discrimination and thus would be understood by employees as limited to that context.

The GC Memo lists a series of unlawful employer policies and the rationale in support of the conclusion that the policies are unlawful. The list includes policies that:

• Prohibit publishing or disclosing the employer’s or another’s confidential or other proprietary information;
• Require employees to be respectful to the company, other employees, customers, and partners;
• Require employees to show proper consideration for others’ privacy and for topics that may be considered objectionable or inflammatory speech, such as politics and religion; or prohibit sending unwanted, offensive, or inappropriate emails;
• Specify that all inquiries from the media must be referred to the Director of Operations in the corporate office, no exceptions;
• Prohibit the use of company logos without written consent;
• Banned use or possession of personal electronic equipment on employer property; or prohibiting employees from using recording devices, including but not limited to, audio, video, or digital for the purpose of recording any employee or operation;
• Prohibit walking off the job; and
• Prohibit employees from engaging in any action that is not in the best interest of the employer.

Wendy’s: The Old vs. The New

Part two of the GC Memo is devoted to the Wendy’s case. Wendy’s handbook included a variety of policies thought to be unlawful, such as policies regarding: (1) disclosure of the handbook to a third party; (2) social media; (3) conflicts of interest; (4) confidentiality; (5) employee conduct; (6) prohibitions against distribution and solicitation; and (7) electronic devices and recording devices.

Pursuant to a settlement agreement, Wendy’s agreed to revise its policies. The revised policies are included in the GC Memo. 

Whether the GC Memo helps employers is debatable but every employer should read it and compare its existing policies to those discussed in the memo. Employer handbook and personnel policies are unique to each organization and its specific goals and priorities. The examples of lawful policies and the revised Wendy’s policies may help employers shape their own policies, but each employer must decide whether its policies need to be revised and, if so, whether the examples contained in the GC Memo are appropriate for their organization.