Think Your Handbook Is Legally Compliant? NLRB Says, “Think Again”

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In the most recent memorandum issued by the General Counsel (“GC”) of the National Labor Relations Board (“Board”) regarding workplace policies, memorandum GC 15-04, the Board offers employers new guidance on how to craft employee handbook rules that do not run afoul of the National Labor Relations Act (“Act”). The two-part memorandum first analyzes employer rules “frequently at issue” in labor cases, such as confidentiality rules; professionalism rules; anti-harassment rules; rules regarding the use of company logos, trademarks, or copyrights; and media contact rules. The second part deals with a recently settled unfair labor practice charge filed against an employer, in which several of the employer’s handbook rules were found to be unlawful.

A. Confidentiality Rules

Although employers have a substantial and legitimate interest in maintaining the confidentiality of certain proprietary information, the Board’s memorandum clarifies that this interest must be balanced against employees’ rights under Section 7 of the Act to discuss wages, hours, and other terms and conditions of employment with co-workers and nonemployees (e.g., union representatives). Therefore, confidentiality policies that specifically prohibit such discussions are unlawful. Similarly, policies are unlawful if employees would reasonably believe that they prohibit the discussion of wages, hours, and other terms and conditions of employment. For example, confidentiality policies that prohibit the disclosure or discussion of “employee” or “personnel” information are unlawful. If a confidentiality policy does use broad language, it will still be found lawful if, when viewed in context, employees would not reasonably understand it to prohibit Section 7-protected activity.

B. Rules Regarding Employee Conduct Toward the Company and Supervisors

In previous memoranda, the GC has made clear that employer rules that can reasonably be read to prohibit criticism of the employer will be found unlawful. For example, a rule that prohibits employees from engaging in “disrespectful,” “negative,” “rude,” or “inappropriate” conduct toward the employer or management, without sufficient clarification or context, will be found unlawful. Further, employee criticism may still be protected, even if it is false. Consequently, an employer rule that bans “false” statements about the company, without clarification, will be deemed unlawful.

On the other hand, a rule that requires employees to be respectful and professional to co-workers, clients, or competitors (but not the employer or management) will generally be found lawful, because the employer has a legitimate business interest in having its employees act professionally in that regard. In addition, rules that prohibit conduct amounting to insubordination, or rules reasonably understood to prohibit insubordination, are lawful. For example, an employer may lawfully prohibit serious misconduct, such as threatening, intimidating, or assaulting others.

Employees also have a Section 7 right to criticize their employer’s labor policies in public; therefore, rules that would reasonably be read to restrict such criticism will be deemed unlawful. In turn, the Board has struck down social media policies that broadly prohibit employees from harming or damaging the company’s business or reputation on social media. Lawful social media policies may, however, prohibit employees from criticizing the employer’s products and services, as such criticism is not protected by the Act and can be deemed harmful to the employer.

C. Rules Restricting Argument and Debate Among Employees

An employer’s policies must also account for its employees’ Section 7 right to argue and debate with each other about unions, management, the terms and conditions of their employment, and certain political matters. The GC noted that these discussions will not lose protection under the Act even if they include “intemperate, abusive, and inaccurate statements.” Therefore, an employer cannot lawfully ban “negative,” “insulting,” “embarrassing,” or “inappropriate” discussions among its employees without further clarification.

The GC stated that lawful “professionalism” policies direct employees to be respectful to customers, competitors, and third parties without mentioning the employer, management, or employees. Such lawful policies would not reasonably be construed by employees to prohibit Section 7-protected debate and employer criticism.

D. Rules Restricting Employee Interactions With Third Parties

Section 7 also protects an employee’s right to communicate with the media, government, and other third parties regarding wages, benefits, and other terms and conditions of employment. The GC mentioned that employer media policies often run afoul of the Act. While employers may lawfully control who makes official statements on behalf of the company, they must ensure that their policies would not reasonably be read to ban employees from speaking to the media or other third parties on their own (or other employees’) behalf. Employers, therefore, cannot require that employees refer “all media inquiries” to a certain department (e.g., public relations), because employees would reasonably understand that the policy applies to all media inquiries, not only inquiries seeking the employer’s official position. Similarly, an employer cannot require that employees refer all government agency inquiries to the legal department, as employees would reasonably believe that they may not speak to a government agency (e.g., the Board) without management approval.

The GC also stated that employers cannot ban employees from speaking with the media or other third parties regarding “company matters,” because employees could reasonably construe the phrase “company matters” to encompass concerns regarding the employees’ terms and conditions of employment. The GC mentioned that lawful media policies aim to control the company’s message rather than restrict employee communications to the media.

E. Rules Prohibiting Employee Use of the Employer’s Logos, Copyrights, and Trademarks

The GC acknowledged that copyright holders have an interest in protecting their intellectual property rights; however, employer rules cannot restrict an employee’s fair use of that property. Specifically, the GC mentioned that employees have a right to use the employer’s name and logo on picket signs, leaflets, and other protest materials, because the employer’s proprietary interests are not implicated by the employees’ noncommercial use of such property in connection with Section 7 activity. Therefore, a rule that broadly bans employees from using the employer’s logos, trademarks, copyrights, or other property will be deemed unlawful.

Lawful employer rules in this regard will require that employees respect the employer’s intellectual property rights, including the laws permitting fair use.

F. Rules Restricting Photography and Recording in the Workplace

The GC stated that employees have a Section 7 right to photograph and make recordings in the workplace during nonwork time. Further, the GC mentioned that employees have the right to use their personal devices to take such pictures and recordings. Consequently, employer rules prohibiting the use or possession of personal cameras or recording devices will be deemed unlawful where they would reasonably be read to prohibit the taking of pictures or recordings in the workplace on nonwork time. For example, the Board determined an employer rule prohibiting cell phone use “while on duty” to be unlawful, because employees would reasonably understand “on duty” to include breaks and meals during their shifts, as opposed to actual work time.

G. Rules Restricting Employees from Leaving Work

The GC noted that one of the most fundamental rights under Section 7 is the employees’ right to go on strike. Accordingly, employer rules that prohibit employees from leaving work will be deemed unlawful if employees would reasonably construe them to forbid protected strikes and walkouts. For example, an employer rule that prohibits an employee from “walking off the job” is unlawful. The GC advised that employer rules that restrict employees from leaving work, their workstations, or posts should not mention “strikes,” “walkouts,” “work stoppage,” or “walking off the job.” Employers also should not require that employees obtain permission prior to entering the property, because employers may not deny off-duty employees access to parking lots, gates, and other nonworking areas except where sufficiently justified by business reasons (e.g., a lawful rule preventing a healthcare employee from leaving work during a scheduled shift).

H. Conflict-of-Interest Rules

Section 7 also protects the employees’ right to engage in concerted activity to improve the terms and condition of their employment, even if that activity is in conflict with the employer’s interests (e.g., protest, boycott, union solicitation on nonwork time). If an employer’s conflict-of-interest policy would reasonably be read to prohibit such activities, then the rule will be found unlawful. For example, a policy that prohibits employees from engaging in any action that is “not in the best interests of the employer” is unlawful.

The GC advised that lawful conflict-of-interest policies include specific examples or otherwise clarify that the policy is limited to the employer’s legitimate business interests, such that employees will reasonably understand that the policy does not prohibit protected, concerted activity.

I. Handbook Disclosure Provisions

As set forth above, employees have a Section 7 right to discuss their wages and other terms and conditions of employment with others, including co-workers, union representatives, and government agencies. Therefore, a provision that prohibits the disclosure of an employee handbook containing employment policies to third parties, such as union representatives or the Board, is unlawful according to the GC.

J. Solicitation/Distribution Policies

A blanket prohibition against soliciting, collecting funds, or distributing literature without proper approvals will be deemed unlawfully overbroad, because employees have a Section 7 right during nonwork time to engage in solicitation. Further, with respect to electronic distributions (e.g., email flyers), the GC noted that while an employer may restrict distribution of literature in paper form in work areas, it has no legitimate business justification to restrict electronic distribution in work areas during nonworking time. In addition, the GC mentioned that unlike the distribution of paper literature, electronic distribution does not produce litter and impinges on the employer’s interests only if it occurs during working time.

The GC’s memo makes clear that the Board is continuing to increase its scrutiny of employer handbook rules. Given the Board’s close examination of workplace policies, employers should be particularly mindful in how they craft, promulgate, and maintain their policies so as not to impinge on Section 7 activity. Employers still have some flexibility to maintain broad workplace policies aimed at protecting their business interests, so long as a reasonable employee would not infer that such rules prohibit Section 7 activity. Accordingly, employers should take another close look at their handbooks and policies to ensure that they comply with the Board’s recently issued guidance.

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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