When employers hear “NLRB,” they immediately think “union.” This connection is understandable because, at least historically, the main focus of the National Labor Relations Board (the “NLRB”) has been union-related issues. However, the protections of Section 7 of the National Labor Relations Act (the “NLRA”) extend to both union and non-union employees. In recent years, the NLRB has increasingly focused on employer handbooks and policies as part of Section 7’s protections. As NLRB officials themselves have expressed, this effort in their view is simply part of the current NLRB’s goal to remain “relevant’ to the modern and increasingly non-union workforce. As a result, these new and constantly developing NLRB pronouncements about employer handbooks and policies may be applicable and, thus, are a legitimate concern for all employers.
On March 18, 2015, the General Counsel of the NLRB, Richard Griffin, issued a Report addressing the unlawful nature of certain handbook policies under the NLRA. The Report contains many surprising conclusions about commonly-used handbook policies. As General Counsel Griffin (the “GC”) reminds employers, the NLRB has found that the mere maintenance of a work rule may violate the NLRA if it has a chilling effect on employees’ Section 7 rights to engage in concerted activity. Below is a summary of the GC’s conclusions with respect to particular types of policies. Given the NLRB’s increased focus on handbook policies and this Report’s conclusions regarding a number of frequently used policies, employers – even those with employees not represented by labor unions – should carefully review their handbooks to avoid NLRB scrutiny.
1. Confidentiality Policies
The GC’s Report concludes that there is a risk employees will construe confidentiality policies as limiting their ability to discuss wages, hours, and other terms and conditions of employment. For example, the Report states that a policy that prohibits employees from “[d]isclosing…details about [the Employer]” is unlawful under the NLRA because it does not make clear that communications to discuss the terms and conditions of their employment are exempted. Similarly, the Report recognizes as unlawful a policy stating that, “if something is not public information, you must not share it,” because such a policy could lead employees to understand that information such as wages, benefits, or other terms or conditions of employment are prohibited from being shared, as this information is not considered public.
Notwithstanding, the Report also outlines a few examples of lawful confidentiality rules. For example, a rule prohibiting “unauthorized disclosure of business ‘secrets’ or other confidential information” is lawful under the NLRA, as is a rule prohibiting “[m]isuse or unauthorized disclosure of confidential information not otherwise available to persons or firms outside [Employer].”
2. Employee Conduct Toward Company and Management Policies
According to the Report, policies that prohibit employees from engaging in “disrespectful,’ “negative,” “inappropriate,” or “rude” conduct towards the company or management will be found unlawful absent further clarification. The Report’s reasoning for this finding is that such a policy can be construed to prohibit concerted criticism of the employer’s policies or treatment of employees. Further, because the NLRB has found that employee criticism of an employer will not lose NLRA protection because the criticism is false or defamatory, the Report states that a policy which prohibits only false statements will be still considered unlawful by the NLRB. By way of example, the current NLRB, as emphasized in the Report, considers the following behavioral rules to be unlawful:
- “[B]e respectful to the company, other employees, customers, partners, and competitors.”
- “Do ‘not make fun of, denigrate, or defame your co-workers, customers, franchisees, suppliers, the Company, or our competitors.’”
- “Be respectful of others and the Company.”
- “No [d]efamatory, libelous, slanderous or discriminatory comments about [the Company], its customers and/or competitors, its employees or management.”
However, the Report states that rules prohibiting conduct that amounts to insubordination are considered lawful. In support of this statement, the GC’s Report cites to an NLRB ruling which found the following provision, in connection with its larger context in a policy addressing serious misconduct, to be lawful: “Being insubordinate, threatening, intimidating, disrespectful or assaulting a manager/supervisor, coworker, customer or vendor will result in discipline.” The Report also states that the NLRB will also consider policies which require employees to be courteous to customers and to cooperate with co-workers and management in the performance of their work to be lawful.
3. Employee Conduct Toward Co-Workers Policies
Just as with policies regulating conduct with management, the current NLRB believes that policies governing conduct between co-workers are unlawful if they can be construed to restrict employees’ Section 7 rights to discuss the terms and conditions of their employment. The Report notes that these discussions can often become contentious. For this reason, policies banning “negative” or “inappropriate” discussion amongst employees are considered by the current NLRB to be unlawful under the NLRA.
For example, the Report states that anti-harassment handbook provisions such as “do not pick fights” or “do not make insulting, embarrassing, hurtful or abusive comments about other employees online” are unlawful because they may be construed to limit protected contentious discussions regarding the terms and conditions of employment. The Report further states that the common provision of prohibiting “unwanted, offensive, or inappropriate” e-mails is unlawful if the context of the provision does not show that this prohibition does not encompass Section 7 communications.
The Report nonetheless states that policies which simply require professionalism will be considered lawful. The Report outlined the following provisions as examples of lawful employee-employee conduct rules:
- “[T]hreatening, intimidating, coercing, or otherwise interfering with the job performance of fellow employees or visitors” is prohibited.
- “No ‘harassment of employees, patients or facility visitors.”
- “No ‘use of racial slurs, derogatory comments, or insults.’”
4. Employee Interactions with Third Parties
The GC’s Report also takes issue with policies concerning communications with third parties since Section 7 protects the rights of employees to communicate with the news media, government agencies, and other third parties about the terms and conditions of their employment. Thus, the current NLRB believes that the very common policy of requiring employees to refer media inquiries to a designated individual is unlawful. It takes this view based on its belief that employees may understand this policy to apply to all media contacts, rather than just media inquiries seeking the employer’s official position on a topic. For this reason, the Report states that a media policy which carves out Section 7 related matters will be considered lawful.
5. Employee use of Company Logos, Copyrights, and Trademark Policies
The Report even goes so far as to state that policies prohibiting employees from using the company’s logos, copyrights and trademarks are unlawful because they could be read to ban the fair use of the employer’s intellectual property in the course of protected concerted activity. The Report outlines that provisions which instead only require employees to respect laws concerning the use of such property are considered lawful.
6. Policies Restricting Photography and Recording
Because employees have Section 7 rights to photograph and make recordings in furtherance of their protected concerted activity, the Report states that rules placing a total ban on such photography or recordings are unlawful. In addition, the Report also concludes that policies which place a total ban on the use or possession of personal electronic equipment on company property are also unlawful.
7. Policies Restricting Employees from Leaving Work
The Report also takes issue with policies that regulate when employees can leave work. Because Section 7 protects employees’ rights to strike or walk out, the Report deems policies which prohibit employees from missing scheduled shifts or “walking off the job” as unlawful under the NLRA. However, the Report concludes that a handbook rule which states that “leaving Company property without permission may result in discharge,” is lawful because it does not include terms like “work stoppage” or “walking off the job” and thus will not reasonably be read to encompass strikes.
8. Conflict of Interest Policies
The Report concludes that a policy which prohibits an employee from acting in a manner that is not in the employer’s best interest will be considered unlawful if it can reasonably be construed to prohibit protected concerted activity which may not be in the best interest of the employer. In order to use this type of policy, the Report states that such conflict of interest policies should either clearly outline which types of circumstances to which it applies or clearly exempt Section 7 activity.
9. Handbook Disclosure Provisions
Referencing a recent settlement with Wendy’s International, LLC, the Report discussed the chilling effect a prohibition against disclosing the handbook policies may have on Section 7 activity. For this reason, the Report states that this commonly used policy violates the NLRA.
10. Email Access Policies
Consistent with the NLRB’s significant 2014 decision in Purple Communications, the Report reiterated that policies which restrict solicitation or distribution by employees with access to email during nonworking time are unlawful. Before Purple Communications, the precedent regarding company-provided email was established by Register Guard, a 2007 NLRB decision which was upheld by the D.C. Circuit in 2009. In this case, the NLRB reasoned that because email systems are similar to other employer-provided communications equipment, such as bulletin boards, copy machines, P.A. systems and telephones, the same rules apply to those systems as apply to company-provided email. For that reason, the NLRB decided that employers were permitted to prevent employees from using an employer’s email system for non-work related purposes, including concerted activity protected by Section 7, so long as the rule was not enforced in a discriminatory manner.
However, in Purple Communications, the NLRB overruled Register Guard, finding that decision to be “clearly incorrect” with “consequences…too serious to permit to stand.” The NLRB found that email systems were not like telephones, P.A. systems, or bulletin boards because employees use email for a large portion of their work days. For the purposes of Section 7 analysis, the NLRB decided that sending emails is tantamount to speaking face to face. Under this case’s holding, employees who already have access to their employer’s email system in the course of their work have a right to use the email system to engage in Section 7 protected communications on non-working time. As the NLRB made clear in Purple Communications, employers do not have to grant email access to employees who do not currently have such access through the normal course of work.
For more information, please contact David Murphy, Mike Droke, Sarah Herman, Rebecca Bernhard, or JoLynn Markison.