A recent report from the National Labor Relations Board (NLRB or Board) Office of the General Counsel (OGC) offers a glimpse into the Board’s current direction on the topic of employee handbook policy compliance with Section 7 of the National Labor Relations Act (NLRA).
The “Report of the General Counsel Concerning Employment Rules,” which presents recent case developments in the context of employee handbook rules, is divided into two parts. First, it discusses the legality of work rules frequently before the NLRB, such as rules pertaining to confidentiality, professionalism, anti-harassment, trademark, photography/recording and media. The discussion includes examples of rules the OGC found lawful and unlawful, as well as its rationale. Next, the report examines handbook rules from a recently settled unfair labor practice charge, after the OGC’s initial determination that several of the rules were facially unlawful. Included are the modified rules, adopted pursuant to an informal bilateral Board settlement, which the OGC does not believe violate the Act.
Examples of Unlawful Rules
Many of the rules that the OGC found unlawful explicitly restricted employees from discussing wages, hours and other terms and conditions of employment with fellow employees, as well as with nonemployees, such as union representatives. Under Section 7 of the NLRA, employees – represented and non-represented – have the right to engage in such conduct, known as protected concerted activity. The remainder of the rules that were deemed to be unlawful did not explicitly prohibit Section 7 activity, but rather, the OGC concluded that employees “would reasonably construe” the rule to prohibit Section 7 activity. Often this was because the rule was vague, overbroad or lacked further clarification, specifics or examples. For example:
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Since late 2010, the NLRB has actively applied the Act to emerging forms of social media, including employer rules seeking to regulate employee conduct on social media. This report, however, should serve as a reminder and a warning that employees’ Section 7 rights are not just limited to social media policies. The OGC will likely continue to focus on any employer rule which explicitly restricts employees from engaging in Section 7 activities or which employees “would reasonably construe” to prohibit such conduct.
The best way to respond to these developments is to be proactive. Do not wait until one of your rules is legally challenged. Review all of your handbook rules now to ensure that your rules comply with the guidance in the OGC’s report. If you need assistance, please contact us.