In the National Labor Relations Board (“NLRB”)’s quest to stay relevant, the NLRB’s General Counsel have just issued a 30-day memorandum setting forth the type of employer rules or policies which are prohibited and have a “chilling effect.” This memo follows the recent NLRB decisions that have been issued focusing on company rules and policies which the NLRB considers lawful and unlawful.
The National Labor Relations Act (“NLRA”) is a federal law that oversees the relations between employers and employees in the private sector. Whether or not an employer is covered under a collective bargaining agreement is irrelevant for purposes of determining coverage by the NLRA. If an employer interferes with an employee’s right to engage in protected concerted activity, the NLRB will step in.
In the cover letter to his memorandum, the General Counsel (“GC”) noted that while he believed that most employers do not draft their handbooks with the object of prohibiting or restricting conduct that is protected by the NLRA, that the law “does not allow even well-intentioned rules that would inhibit employees from engaging in activities protected by the Act.” The GC further commented that his office continues to see “meritorious charges alleging unlawful handbook rules,” and stated that he was publishing the memorandum in an effort to help employers to ensure that their policies/rules are lawful.
Under the Board’s seminal decision in Lutheran Heritage Village-Livonia, 343 NLRB 546 (2004), the maintenance of a work rule may violate Section 8(a)(1) of the NLRA if the work rule has a “chilling effect” on employee’s exercise of rights under Section 7 of the Act. A rule will be found to be unlawful, even where it does not on its face explicitly prohibit protected activity, if: 1) employees would reasonably construe the rule’s language to prohibit protected activity; 2) the rule was promulgated in response to union or other protected activity; or 3) the rule was actually applied to restrict the exercise of protected rights.
The General Counsel’s Memo then set forth categories of rules and policies, and examples of what the NLRB considers to be unlawful and lawful. We provide some of these examples below. For a complete list of all of the examples of unlawful/lawful policies provided by the General Counsel, you can go to www.nlrb.gov/reports-guidance/general-counsel-memos.
Keep in mind that the NLRB found some of the rules and policies unlawful because it viewed the rules/policies as being too broad, and, hence, possibly interfering with an employee’s right to engage in protected activity. Therefore, it is important that Employers when drafting employment work rules and policies keep them as narrowly tailored as possible.
Examples of Lawful and Unlawful Handbook Rules or Policies:
Rules on Confidentiality
Telling employees not to discuss customer or employee information outside of work, including phone numbers and addresses is UNLAWFUL
Telling employees that work matters are only to be discussed with other employees who have a specific business reason to know or have access to such information is UNLAWFUL
Telling employees to never publish or disclose an employer’s or another’s confidential information, or to never publish/report private conversations with the employer is UNLAWFUL.
Prohibiting employees from disclosing details about the employer, or not to share information if it is not public information is UNLAWFUL
Prohibiting employees from unauthorized disclosure of business secrets or other confidential information, or confidential financial data, or other non-public company information is LAWFUL
Prohibiting disclosure of all information acquired in the course of one’s work is LAWFUL
Rules Relating to Conduct Towards the Employer
Directing employees to be respectful to the company, other employees, customers, partners and competitors, or be respectful of others and the company is UNLAWFUL
Telling employees to not make fun of, denigrate, or defame other employees, customers, the Company, etc…, or to not make defamatory, libelous, slanderous or discriminatory comments about the Company or others is UNLAWFUL
Prohibiting employees from engaging in disrespectful or insubordinate behavior or refusing to follow orders from supervision is UNLAWFUL
Prohibiting employees from engaging in any action that would harm person or property or cause damages to the Company’s business or reputation, or directing the employees to exercise caution and discretion when posting content on social media that may affect the company’s business operation or reputation is UNLAWFUL
Prohibiting employees from engaging in rude or unprofessional behavior towards customers, or others in contact with the company, or prohibiting discourteous or disrespectful conduct towards customers or members of the public while in the course and scope of business is LAWFUL
Telling employees that they are each expected to work in a cooperative manner with their supervision, customers and vendors is LAWFUL
Telling employees that they are expected to abide by company policies and to cooperate fully in any investigation conducted by a company is LAWFUL
Telling employees that they will be disciplined for being insubordinate, threatening, intimidating, disrespectful or assaulting a manager/supervisor, coworker, customer or vendor is LAWFUL
Rules Relating to Conduct Towards Other Employees
Prohibiting employees from picking fights online, or from making insulting, embarrassing, hurtful or abusive comments about other company employees online, or to avoid the use of offensive, derogatory, or prejudicial comments is UNLAWFUL
Prohibiting employees from sending unwanted, offensive, or inappropriate emails, or sending materials that is fraudulent, harassing, embarrassing, sexually explicit, profane, obscene, intimidating, defamatory, or otherwise unlawful or inappropriate is UNLAWFUL
Having a harassment/discrimination policy which prohibits employees from using racial slurs, derogatory comments, or insults is LAWFUL
Prohibiting employees from making inappropriate gestures including visual staring, or harassing employees, patients or facility visitors is LAWFUL
Prohibiting employees from wearing logos or graphics which reflect any form of violent, discriminatory, abusive, offensive, demeaning, or otherwise unprofessional message is LAWFUL
Rules Relating to Interaction with Third Parties
Prohibiting employees from speaking to representatives of the news media about company matters, unless designated to do so from the company; or answering any questions from the news media is UNLAWFUL
Telling employees to contact the Law Departments immediately for assistance if they are contacted by any government agency is UNLAWFUL
Advising employees that the company strives to anticipate and manage crisis situations in order to reduce disruption to its employees and to maintain its reputation as a high quality company, and to best serve these objectives, the company will respond to the news media in a timely and professional manner only through its designated spokespersons is LAWFUL
Advising employees that should events occur at the company’s store that draw immediate news media attention, it is imperative that one person speak for the company to deliver an appropriate message and to avoid giving misinformation; and every employee is expected to, if contacted by the media, respond “I am not authorized to comment for the company (or I do not have the information you want); let me have our public affairs office contact you” is LAWFUL
Rules Relating to Use of Company Logos, Copyrights, and Trademarks
Prohibiting employees from using company logos, trademarks, graphics, or advertising materials in social media; or using other people’s property such as trademarks, without permission, in social media is UNLAWFUL
Prohibiting employees from using company logos and trademarks without written consent; or using the company’s name, address or other information in the employee’s personal profile is UNLAWFUL
Telling employees to respect all copyright and other intellectual property law, and for the company’s protection as well as the employees, it is critical that employees show proper respect for the laws governing copyright, fair use of copyrighted material owned by others, trademarks and other intellectual property, including the company’s own copyrights, trademarks and brands is LAWFUL
Rules Relating to Photography and Recording
Prohibiting employees from taking unauthorized pictures or video on company property; or from using any recording devise including but not limited to audio, video, or digital for the purpose of recording any employee or employer operation is UNLAWFUL
Banning the use or possession of personal electronic equipment on employer property, or prohibiting personal computers or data storage devices on employer property is UNLAWFUL
Prohibiting employees from wearing cell phones, making personal calls or viewing or sending texts “while on duty” is UNLAWFUL
Having a media policy with instructions on how to deal with reporters in the store, and provides that no cameras are to be allowed in the store or parking lot without prior approval from the corporate office is LAWFUL
Rules Relating to Leaving Work
Prohibiting employees from walking off the job, or walking off the job during a “schedule shift” is UNLAWFUL
Telling employees that entering Company property without permission may result in discharge is LAWFUL
Telling employees that walking off a shift, failing to report for a scheduled shift and leaving early without supervisor permission are also grounds for immediate termination is LAWFUL
Rules Relating to Conflict-of-Interest
Prohibiting employees from engaging in “any action” that is “not in the best interest of the employer” is UNLAWFUL
Having an employee acknowledge that they will not engage in any activity that might create a conflict of interest for the employee or the company, as part of a two-page conflict of interest policy which provides examples of such conflicts such as “avoid outside employment with an employer’s customer, suppliers or competitor, or having a significant financial interest with one of those entities” is LAWFUL
Rules Relating to Social Media
Prohibiting employees from commenting on the company’s business, financial performance, strategies, clients, policies, employees or competitors in any social media, without the advance approval of supervision, human resources, and communications department; and further telling employees that anything they say might be construed as representing the company’s opinion or point of view, or reflect negatively on the company; and that if an employee wishes to make a complaint or report troubling behavior they are to follow the company complaint procedure is UNLAWFUL
Prohibiting employees from emailing, posting, commenting or blogging anonymously is UNLAWFUL
Prohibiting employees from making false or misleading representations about their credentials or work is UNLAWFUL
Prohibiting employees from harassing, threatening, libeling, maligning, defaming, or disparaging fellow professionals, employees, clients, competitors or anyone else via social media or email; and further prohibiting employees from making personal insults, using obscenities or engaging in any conduct that would be unacceptable in a professional environment is UNLAWFUL
Prohibiting employees from making negative comments about the company’s customers in any social media is LAWFUL
Advising employees that the use of social media on company equipment during working time is permitted if used for legitimate, preapproved company business; and that the employee is to discuss the nature of their anticipated business use and content of their message with their supervision and human resources, and obtain their approval before such use is LAWFUL
Advising employees that due to the potential for issues such as invasion of privacy, sexual or other harassment (as defined by the company policy), protection of proprietary information, employees may not take, distribute, or post pictures, videos, or audio recordings on working time; and employee may not take pictures or make recordings of work areas; and that an exception to the rules concerning pictures and recordings of work areas would be to engage in activity protected by the NLRA including, for example, taking pictures of health, safety, and/or working condition concerns, or of strike, protest, and work-related issues and/or protected concerted activities is LAWFUL
What does all of the above mean?
In drafting employer work rules and policies, there is no black and white line here. All of the above examples of lawful and unlawful rules/policies were viewed in context in light of the employer’s other policies, procedures, rules, and practices. It would not be sufficient, therefore, for an employer to simply copy language that the NLRB found to be lawful in one particular case. Keep in mind that the General Counsel’s memo is not law, but does set forth how the NLRB might view particular policies in light of decisions that have been issued by the Board. Employers looking to draft policies/rules, or review their policies/rules for lawfulness, should at a minimum review the entire General Counsel’s memo to try and understand the various nuances pointed out and the context of the examples provided. It is further recommended that employment counsel be consulted with regard to any questionable rules/policies.
ABOUT THE AUTHOR: Ms. Silva is a graduate of University of the Pacific. She is senior counsel in the firm’s Employment Practices Group. She is a former prosecutor and has considerable trial experience. Contact her at firstname.lastname@example.org