On March 18, 2015, the National Labor Relations Board (NLRB) General Counsel Richard Griffin issued a Report Concerning Employer Rules. This report provides guidance on what employee handbook policies are considered lawful and unlawful.
The report concludes that the majority of handbook policies were deemed unlawful because they could be reasonably construed by the employee to prohibit Section 7 activity. Section 7 activity, or protected concerted activity, gives employee the “right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
The following are categories of handbook policies and rules for which the NLRB report provides some guidance. Employers should consider reviewing applicable policies and rules to ensure compliance with this guidance. Candidly, some of the guidance is vague and creates new ambiguity in this area. Undoubtedly, these topics will be the subject of continuing discussion and interpretation.
Handbook policies that prevent employees from discussing the terms and conditions of employment are considered unlawful because it can be reasonably construed as preventing Section 7 activity. Additionally, broad confidentiality rules that encompass “employee” or “personnel” information without further clarification are unlawful.
Policies that seek to preserve confidentiality should avoid references to employee information or terms / conditions of employment. However, broad confidentiality policies encompassing “all information” may be lawful if it is within a specific section of the handbook policy, where the employee would not reasonably construe it to be prohibiting Section 7 activity.
EMPLOYEE CONDUCT TOWARD COMPANY AND SUPERVISORS
Handbook policies which appear to prohibit criticism of the employer / Company / management will be found unlawfully overbroad. Furthermore, whereas maliciously false statements can be prohibited, false or defamatory criticism is protected
Policies that require employees to be respectful and professional to co-workers, clients, or competitors are lawful.
EMPLOYEE CONDUCT TOWARDS FELLOW EMPLOYEES
Banning “negative” or “inappropriate” discussions among employees without further clarification is unlawful as these terms are too broad.
Rules that simply require employees to be respectful and not engage in unprofessional conduct, without mentioning company or management, are lawful.
EMPLOYEE INTERACTION WITH THIRD PARTIES
Rules that restrict communications with the news media, government agencies, and other third parties about terms and conditions of employment are illegal.
Detailed and clear policies that provide steps for managing media relations not related to Section 7 activity will be lawful.
RESTRICTING USE OF COMPANY LOGOS, COPYRIGHTS, AND TRADEMARKS
Prohibiting non-commercial use of logos, trademarks, etc. is unlawful.
Rules that allow non-commercial use of this information while emphasizing the need to respect copyright and intellectual property laws are lawful.
RESTRICTION OF PHOTOGRAPHY AND RECORDING
A total ban on photography or recordings, or banning the use or possession of personal cameras or recording devices, is unlawful. Prohibition of personal computers or data storage devices on Company property is also unlawful.
Rules regulating photography or recording are lawful if the scope is appropriately limited (e.g. to protect patient privacy).
RESTRICTING EMPLOYEES FROM LEAVING WORK
Rules that a reasonable employee would construe as forbidding protected strike actions and walkouts are unlawful.
Lawful rules should generally avoid terms like “work stoppage” or “walking off the job.” However, depending on the nature of the job, prohibiting “walking off shift” may be lawful if it is clearly meant to protect another interest (e.g. health care responsibilities, ensuring patients have adequate care)
Rules that would reasonably be read to prohibit protests in front of the company, boycotts, and soliciting of support for a union on non-work time are unlawful.
Conflict-of-interest rules should be detailed so to prevent a reasonable employee from construing the language as prohibiting Section 7 activity (e.g. listing specific actions that would be inappropriate; specifying prohibition of exploitation of one’s position for personal gain).
ADDITIONAL UNLAWFUL POLICIES
The following provisions are also unlawful:
• Provisions prohibiting disclosure of the contents of the Company’s handbook, including employment policies, to third parties, like union representatives or the NLRB
• Provisions requiring public self-identification in order to participate in protected activity (unwarranted burden on Section 7 rights)
• Provisions requiring pre-authorization of blogging, joining online groups, and other online activity
• Provisions that place a blanket prohibition against soliciting, collecting funds, or distributing literature without proper approvals (can solicit during non-work time and non-work areas)
• Provisions prohibiting distribution of literature by electronic means in work areas