NLRB GC Release Report Offering Employers Guidance on Handbook Policies

McNees Wallace & Nurick LLC

The National Labor Relations Board’s Office of General Counsel recently released a Report of the General Counsel Concerning Employer Rules, which is apparently designed to offer guidance to employers regarding workplace rules. We can summarize the 30 page memo as follows: the GC does not like your rules.

The memorandum contains several examples of rules that the GC had deemed unlawful in the past and then several examples of policies deemed lawful in the areas of confidentiality, employee conduct toward the company, employee conduct toward other employees, employee conduct toward third parties (i.e. the media), rules restricting the use of company logos and trademarks, rules restricting photographs and recordings in the workplace, rules restricting employees from leaving the workplace without permission (which could impact striking workers), and employer conflict of interest rules. The GC provides an explanation regarding the distinctions between the lawful and the unlawful rules.

The GC also uses a recent settlement with a large fast food chain to provide examples of several policies it would view as lawful under the National Labor Relations Act.

The Report is confusing at times and appears to be contradictory, particularly when the sections regarding conduct toward the employer and conduct towards other employees are read together. When you boil those two sections down, there isn’t much that is off limits in the GC’s view.

That view is certainly eye-opening. For example, the Report notes GC’s conclusion that employees have the right to publicly criticize employers, and that protected conduct does not lose the protection of the Act even if it is abusive and inaccurate. To be fair, the Report is helpful to the extent you are seeking to craft policies that will withstand the rigorous review of the Board’s current GC. Whether the Board and the courts will ultimately sustain that aggressive approach remains to be seen. However, we do recommend reviewing the Report and adjusting your policies appropriately.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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