On March 18, the National Labor Relations Board's Office of the General Counsel (OGC) published a Report Concerning Employer Rules that discusses a variety of employee handbook rules addressed by the board in recent cases. The report should be required reading for all employers, both unionized and non-unionized. In fact, non-unionized employers should pay special attention to the report, because their handbook rules typically have not been subject to the scrutiny of a collective bargaining process and the NLRB is increasingly targeting non-unionized employers in its investigations regarding employer rules.
As most employers are aware, the National Labor Relations Act (NLRA) gives employees the right to discuss wages, hours and other terms and conditions of employment with each other, and with other third parties. (Put in legal terms, employees have the right to engage in "concerted activities" related to their employment.) In order to comply with this law, employee handbooks cannot contain rules that explicitly restrict or prohibit concerted activities or rules that employees may reasonably understand to restrict concerted activities.
The OGC's report is broken into two parts: (1) Lawful and Unlawful Handbook Rules, which contains a summary of handbook rules that recently have been the subject of cases decided by the board; and (2) The Settlement (with a major fast-food chain), which provides an overview of handbook rules from a recently settled case in which the fast-food employer was charged with numerous unfair labor practice violations.
Examples of Lawful and Unlawful Handbook Rules
Part 1 of the OGC's report presents examples of handbook rules that the board has found unlawful or lawful, and provides brief explanations of the board's analysis of those rules. More specifically, the report addresses handbook rules related to:
- Confidentiality of employees' terms and conditions of employment (e.g., discussion of wages)
- Employee conduct toward the company and supervisors (e.g., employees criticizing or protesting an employer's labor policies)
- Employee conduct toward fellow employees
- Employee interaction with third parties (e.g., company media policies).
- Employee use of company logos, copyrights and trademarks
- Employee ability to take photographs and make recordings
- Employees leaving work (e.g., walking off the job)
- Employee activity that creates a conflict of interest between employee and employer
The rules and examples provided in Part 1 are presented in a user-friendly, easy-to-read format, and employers should be able to quickly glean some basic "do" and "don't" rules from the examples.
Part 2 of the OGC's report reviews a list of handbook rules at the center of a recently settled case between the NLRB and a fast-food employer. Many rules in this specific employee handbook were deemed overbroad and facially unlawful by the board, and the settlement between the parties included a series of modified rules that the employer agreed to include in a revised handbook. The OGC's report includes examples of the original, unlawful handbook provisions and of the lawful, modified rules.
Employers should find it a productive exercise to compare the language contained in the NLRB-approved rules with the original rules that the NLRB found unlawful, and then to review their own handbooks in light of that information.
Action Steps for Employers
First, employers should read the OGC's report.
Second, employers should carefully review their own handbooks, as well as other employee policies and rules, to assess whether those policies and rules are aligned with the guidance provided in the report. Many employers most likely will find language in their handbooks and other policies that, if not modified, could subject them to an action by the NLRB.
Third, employers should promptly revise and update any suspect language in their handbooks, policies and rules to ensure compliance with the law. However, before breaking out the red pens, keep in mind that merely cutting and pasting "lawful" rules from the OGC's report into existing handbooks is an unwise course of action. When it comes to drafting rules that comply with the law, context is critical. Rules that are "lawful" in the context of one policy may be unlawful in the context of another. Because many of the "lawful" rules excerpted in the report are just that - excerpts of larger policies - simply copying the language into a different handbook may not, in fact, result in a lawful handbook rule.
Finally, the OGC's report may be easy to read and understand, but do not be tricked into thinking the rules are either clear or simple. To the contrary, the board's interpretation of the scope of the NLRA is constantly evolving (mostly in favor of increased employee rights and more restrictive employer rules), and compliance can be quite complicated. Employers that discover potentially unlawful language in employee handbooks, rules or policies are advised to contact their labor and employment counsel for assistance in revising their policies to comply with the law.
LeClairRyan's national, full-service Labor and Employment team has a depth of experience helping employers of all types and sizes revise employee handbooks, policies and rules to ensure compliance with state and federal employment laws.
To view the full report, this link will direct you to the NLRB site, then select GC 15-04 dated March 18, 2015.