Over the past several months, we have alerted you to the National Labor Relations Board’s (NLRB) recent trend of scrutinizing employers’ handbook policies and finding many common policies unlawful. On March 18, 2015, NLRB General Counsel Richard Griffin issued the “Report of the General Counsel Concerning Employer Rules” that details the types of handbook rules and policies that his office views to be unlawful under the National Labor Relations Act (NLRA). The General Counsel stated that he issued this report in response to requests from labor law practitioners about an “evolving area of labor law” and because NLRB Regional Offices have seen “a continuing stream of charges with merit” that raised issues with employee handbook rules and policies.

When NLRB Regional Offices investigate unfair labor practice charges and determine whether those charges have merit, they are acting pursuant to the direction of the NLRB General Counsel’s office. Therefore, this report is particularly helpful for employers because it explains what rules and policies NLRB investigators and Regional Offices will deem lawful, and what rules and policies they will consider to be unlawful on the grounds that they interfere with employees’ rights under the NLRA. 

The 30-page report has two parts. In the first part, the General Counsel summarizes NLRB decisions in eight categories of policies that regulate and/or restrict employee conduct relating to:

1. Confidentiality
2. Conduct toward supervisors
3. Conduct toward fellow employees
4. Interaction with the media and other third parties
5. Use of company logos, copyrights and trademarks
6. Photography and recording
7. Leaving work
8. Conflicts of interest

In this section, the report provides examples of policy language that the NLRB has found to be both lawful and unlawful, and it also explains the rationale for any distinctions. In the second part, the General Counsel addresses handbook policies and rules that were at issue in recently-settled unfair labor practice charges filed against Wendy’s International LLC. The report discusses certain handbook rules that were deemed facially unlawful, as well as the modified “model” policies that were held to be acceptable under the settlement.

As explained in the report, when the NLRB decides whether a policy or rule unlawfully interferes with employees’ rights under the NLRA, it asks whether employees would “reasonably construe” the policy or rule to prohibit protected activity. Recently, the General Counsel and the NLRB have applied this standard broadly, finding many policies and rules that seem benign to violate the NLRA because employees would “reasonably construe” them to interfere with protected rights. Since many of the NLRB’s recent cases have involved non-union workplaces where there is no union organizing in progress, this report is highly relevant to all employers.

In sum, the General Counsel’s report is intended to aid employers in drafting employee rules and policies in a manner that does not infringe upon employees’ protected rights under the NLRA, so employers are strongly encouraged to review the report.