In recent years the NLRB has launched a new approach with respect to employer/employee relations by studying employer handbooks to determine whether they violate the rules protecting concerted activity. On March 18, 2015, NLRB General Counsel Richard F. Griffin, Jr. issued a report and Memorandum[1]offering “guidance” on various provisions of employer handbooks in his hope that employers review their handbooks and rules to ensure they are lawful.

In providing a number of examples of rules which are prohibited and rules which are lawful, the Memorandum separately focuses on provisions of the handbook of Wendy’s International LLC, which recently made a settlement with the NLRB. As Mr. Griffin noted, his inquiry, which is not a model of clarity in establishing a bright line of which rules are correct and which are incorrect, focuses on whether individual rules have a “chilling effect on employees’ Section 7 activity.”

The Memorandum breaks into various categories and quotes examples of rules found to be “lawful” or “unlawful”. The categories include confidentiality, conduct toward employer and fellow employees, third party communications and employer logos, copyrights and trademarks.

While the Memorandum is replete with examples of different employee conduct addressed in the handbook rules, it is instructive to look at some conduct rules which were found to be unlawfully broad because “employees would reasonably construe them to restrict protected discussions with their coworkers.”

  • “[D]on’t pick fights” online.
  • Do not make “insulting, embarrassing, hurtful or abusive comments about other company employees online,” and “avoid the use of offensive, derogatory, or prejudicial comments.”
  • Do not send “unwanted, offensive, or inappropriate emails.”

Contrast these “unlawful” rules with those deemed to simply require “employees to be respectful to customers or competitors:”

  • “Making inappropriate gestures, including visual staring.”
  • Any logos or graphics worn by employees “must not reflect any form of violent, discriminatory, abusive, offensive, demeaning, or otherwise unprofessional message.”
  • “[T]hreatening, intimidating, coercing, or otherwise interfering with the job performance of fellow employees or visitors.”
  • No “harassment of employees, patients or facility visitors.”

With the foregoing examples in mind, it is compelling to review the Memorandum and look carefully at existing handbooks, policies and procedures to attempt to modify any which appear to be clearly prohibited. This will not be an easy task since the rules found to be unlawful are written very similarly to those found to be lawful. The Memorandum does not provide sufficient clarity to enable a review of existing handbooks in order to quickly correct rules or policies which would appear to be violative of the law. For example, Mr. Griffin found the following rules “unlawfully overbroad since employees would reasonably construe them to ban protected criticism or protests regarding their supervisor’s management or the employer in general.”

  • “[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.”

Concerning employees’ right to criticize an employer’s labor policies, the NLRB determined the following rules unlawfully overbroad because they would reasonably be read to require employees to refrain from criticizing the employer in public:

  • “Refrain from any action that would harm persons or property or cause damage to the Company’s business or reputation.”
  • “[I]t is important that employees practice caution and discretion when posting content [on social media] that could affect [the Employer’s] business operation or reputation.”
  • Do not make “[s]tatements “that damage the company or the company’s reputation or that disrupt or damage the company’s business relationships.”

The following rules, which look quite similar, were found to be lawful:

  • No “rudeness or unprofessional behavior toward a customer, or anyone in contact with” the company.
  • “Employees will not be discourteous or disrespectful to a customer or any member of the public while in the course and scope of [company] business.”

Since the various examples provided in the Memorandum can be so difficult to distinguish, a suggested approach would be to review the handbook and change any rules which the NLRB would find clearly unlawful.

This article does not constitute, and should not be considered, legal advice. Individuals are urged to consult with an attorney on their own specific legal matters.