On March 18, 2015, the Office of the General Counsel for the National Labor Relations Board issued its "Report Concerning Employer Rules." The 30-page report contains 8 broad areas of employer work rules typically found in handbooks, which have been found to violate the National Labor Relations Act. The report contains a comparison of rules which the Board has found unlawful with rules found to be lawful, and explains the Board's reasoning. The 8 areas addressed in the report are:
1. Rules regarding Confidentiality: Employers have a substantial and legitimate interest in maintaining the privacy of certain business information and broad prohibitions on disclosing "confidential" information are lawful so long as they do not prohibit the employee from disclosing information that would reasonably be considered a term or condition of employment (e.g., wages, hours, workplace complaints). However, some confidentiality policies have been found unlawful because they are overbroad or prohibit protected discussions.
2. Rules regarding Employee Conduct toward the Company and Supervisors: Employees have the right to criticize their employer and protest against labor policies and the treatment of employees, and a rule that prevents such criticisms or disciplines employees for such will be found unlawful. Conversely, a rule that requires employees to be respectful and professional to coworkers, clients and competitors will generally be found lawful because employers have a legitimate interest in having employees act in a professional manner when dealing with customers, business partners and third parties.
3. Rules regulating Employee Conduct towards Fellow Employees: Employees have the right to argue and debate with each other about terms and conditions of employment, and even if these discussions become heated or contentious, a blanket policy banning negative or inappropriate comments toward fellow employees can be unlawful. Employers do have a legitimate interest in maintaining a harassment free (and more recently bully-free) workplace, and need to tailor their policies to avoid violating Section 7 rights to debate.
4. Rules regarding Employee Interaction with Third Parties: Employees have the right to discuss terms and conditions of their employment with the media and government agencies. The primary concern with this section is company media rules. Employers can control who makes official statements for the Company, but cannot ban employees from speaking to the media.
5. Rules restricting Use of Company Logos, Copyrights and Trademarks: A Company's name and logo will usually be protected by intellectual property laws, but the NLRB takes the position that employees have the right to use the name and logo on picket signs, leaflets and other protest materials.
6. Rules Restricting Photography and Recording: Employees have the right to take pictures and use personal devices to make recordings of actions in furtherance of protected activity, and therefore, the NLRB takes the position that workplace bans on photos and recordings are unlawful policies.
7. Rules Restricting Employees from Leaving Work: Employees have the right under Section 7 to go on strike, and rules that regulate when employees can leave work are unlawful if employees could read them to forbid protected strikes and walkouts.
8. Rules regarding Conflicts of Interest: Employees have the right to engage in concerted activity, even if that activity is in conflict with the employer's interests. If an employer's conflict of interest policy can be read to prohibit such activities, it will be found unlawful.
For a discussion of these topics and the NLRB's comparison of unlawful and lawful rules and model language, please click here.
