If you have been trying to follow recent NLRB cases and guidance for what is considered legal in handbook policies, and if you feel a little lost, you are not alone. No employer wants handbook policies that a federal government agency considers illegal, but lately it has been a bit of a challenge to figure out what the NLRB will bless and what it will not. There is a little more direction now. The NLRB General Counsel recently issued a 30-page memorandum for guidance on handbook rules. The GC’s stated purpose is to “help employers to review their handbooks and other rules, and conform them if necessary, to ensure that they are lawful.” The GC memo is helpful, providing many examples of what the NLRB considers lawful and unlawful in handbooks and other workplace rules. But, the roadmap only gets you part way there. In some cases, the examples of what is considered lawful and what is unlawful seem very similar. This article examines the guidance and offers a few tips for reviewing and revising handbooks so that they are most likely to survive review by the NLRB.

Why worry?

If your workplace is non-union and you are wondering whether to worry about NLRB rules, consider this: Any disgruntled employee or union organizer looking for a flag to wave can file an unfair labor practice charge with the NLRB challenging handbook policies. What better way to get attention and credibility than to successfully challenge an employer handbook policy as unlawful. That is one good reason that all employers should make their best effort to conform their handbook policies to NLRB guidance.

Might the rules change later?

This can be another frustrating part of trying to stay current with NLRB thinking. NLRB guidance and case law is subject to change from time to time. The NLRB is made up of five members who are politically appointed. Therefore a change in the political landscape can result in new NLRB members and changes to the way the NLRB members look at issues.

A Little Context

Here is a refresher for understanding the context in which the NLRB is looking at handbook rules. Section 7 of the National Labor Relations Act protects the rights of all non-management employees, union and non-union, to discuss and to complain about wages, hours, and other terms and conditions of employment. With that in mind, it is easy to see why the following hypothetical handbook rules would clearly be illegal:

  • Employees may not speak negatively about working conditions at the Company;
  • Employees may not advocate for outside representation, such as a union;
  • Employees may not discuss wages and benefits, because those are considered confidential.

But, what about less direct restrictions? What about rules that say:

  • Do not make disparaging remarks about the Company, its managers or its other employees.
  • Do not disclose Company confidential information, including personnel information such as employee names, addresses, and phone numbers.

Both of these rules would likely be found unlawful by the NLRB. The NLRB considers any rule unlawful if an employee could reasonably construe it to prohibit protected activity. So, the first example could be read to mean that criticism of the Company’s terms and conditions of employment is prohibited. The broad phrase “personnel information” in the second example could be construed to mean that employees are not allowed to discuss wages. Also, employers are not permitted to prohibit discussion or sharing of employee names, addresses, or telephone numbers unless they are obtained by some improper means. Therein lies the challenge: drafting rules which put reasonable restrictions on employee behavior, but which will not restrict discussion or criticism of the Company or lively, even spirited, debate among employees about working conditions.

Here are a few examples directly from the GC memo and some related tips for reviewing your handbook:

Confidential information

Does your handbook prohibit disclosure of confidential information? It should. Is your policy lawful by NLRB standards? It might not be. The following handbook policies about confidential information were considered illegal by the NLRB:

  • Do not discuss customer or employee information outside of work, including phone numbers and addresses.
  • Never publish or disclose the Company’s or another’s confidential or other proprietary information.
  • If something is not public information, you must not share it.

The NLRB considers all of these statements so broad that employees could reasonably interpret them to prohibit discussion of wages, hours, or other terms and conditions of employment or to unreasonably restrict employee efforts to communicate with one another. Notice that the first example includes a reference to customer information. The NLRB is much more likely to approve restrictions on disclosure of customer information, but the rule as a whole was considered unlawful because of the more broad reference to employee information.

By contrast, the NLRB considered the following handbook statements to be lawful:

  •  No unauthorized disclosure of business secrets or other confidential information.
  • Do not disclose confidential financial data, or other non-public proprietary Company information. Do not share confidential information regarding business partners, vendors, or customers.

Some of this language is similar to that which the NLRB considers unlawful. But, the NLRB found the language lawful because, read in context, it is pretty clear that it is not referring to wages, hours, and other terms and conditions of employment.

TIP:  Context is key. Make certain that policies restricting disclosure of confidential information give context making clear that they cover Company-protected business information. For example, a policy is more likely to be considered lawful if it defines confidential information in context, such as including as examples financial data, cost, and pricing information, business secrets, manufacturing processes or formulas.

Conduct

Does your handbook set out standards for how employees should behave towards supervisors? Does your handbook require employees to be respectful towards management and to not take actions which are contrary to the interests of the Company?

Well, (stay with me now), those policies might be illegal. The GC memo states: “For instance, a rule that prohibits employees from engaging in ‘disrespectful,’ ‘negative,’ ‘inappropriate,’ or ‘rude’ conduct towards the employer or management, absent sufficient clarification or contact, will usually be found unlawful.” The GC memo includes the following as specific unlawful examples:

  • Be respectful to the Company, other employees, customers, partners, and competitors.
  • Be respectful of others in the Company.
  • No defamatory, libelous, slanderous or discriminatory comments about the Company, its customers, and/or competitors, its employees, or management.

Even though some aspects of these policies are proper (like those prohibiting defamatory remarks about customers, competitors, or employees), they also include very broad language prohibiting saying negative things about the Company or management. The NLRB considers that to be a restriction on employee’s rights to be critical of the Company.

By contrast, the NLRB considered the following rules proper:

  • Each employee is expected to work in a cooperative manner with management/ supervision, co-workers, customers, and vendors.
  • Being insubordinate, threatening, intimidating, disrespectful, or assaulting a manager/ supervisor, co-worker, customer, or vendor will result in discipline.

TIP:  Broad language insisting on respect for the Company or management or prohibiting negative remarks about the Company or management are likely to be considered unlawful. However, a more narrow policy focused on specific, clearly inappropriate conduct, such as insubordination or disrespect directed at a member of management, is more likely to be considered proper.

What about conduct towards co-workers. Surely, the NLRB will find no problem with a rule that requires employees to treat one another with respect, right? Well – up to a point. The GC memo states that employees “also have a right under the Act to argue and debate with each other about unions, management, and their terms and conditions of employment. These discussions can become contentious, but as the Supreme Court has noted, protected concerted speech will not lose its protection even if it includes ‘intemperate abusive and inaccurate statements.’ With that as a starting point, the NLRB GC memo goes on to say that when an employer bans “negative” or “inappropriate” discussions among employees, without further clarification, it violates Section 7. As examples, the NLRB considers the following handbook policies unlawful:

  • Don’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.

The Board considers those rules unlawful because they are written so broadly that they would prohibit spirited, lively debate about working conditions, about the Company or about unions.

This is one of the more troubling aspects of the GC Guidance Memo. It seems to presume that employees are incapable of recognizing the distinction between spirited argument and debate and specifically offensive or abusive language or conduct. That ignores the reality of the modern workplace. Employees are quite accustomed in 2015 to proper workplace policies that regulate behavior and require common civility.

The Board did consider the following policies to be proper:

  • Rules banning inappropriate gestures, including visual staring.
  • Threatening, intimidating, coercing, or otherwise interfering with the job performance of fellow employees or visitors.
  • Rules prohibiting the use of racial slurs, derogatory comments, or insults.

The Board is making it difficult for employers to figure out where the line is between allowing for debate and difference of opinion and regulating improper workplace behavior that could be really disruptive, offensive, maybe harassing and that could even lead to workplace violence.

TIP:  In crafting rules that regulate behavior towards co-workers, be sure to include sufficient specific examples of clearly unprotected behavior, such as threats, racial slurs, and intimidation. Try to stay away from more broad phrases, like offensive or derogatory unless you join them with specific examples of improper conduct.

Contact with media, use of logos, trademarks and photographs

Handbook policies sometimes limit employee rights to discuss the Company in public or to use the Company’s name, logo, or images of the Company. But the NLRB considers policies unlawful if they restrict an employee’s right to discuss the Company’s wages, hours, and terms and conditions of employment. The NLRB also considers it improper to limit too greatly an employee’s use of the Company name or images in exercising their rights.

For example, rules that state a broad prohibition of employees discussing the Company with the media are considered unlawful. By contrast, a carefully-crafted rule that restricts employees from speaking to the media on behalf of the Company is considered proper.

Many employer handbooks state a broad prohibition against employee use of the Company logo, name, or trademark information. The NLRB recognizes a company’s right to protect its intellectual property. However, the GC memo also states that “employees have a right to use the name and logo [of the Company] on picket signs, leaflets, and other protest material. Employer proprietary interests are not implicated by employees’ non-commercial use of a name, logo, or other trademark to identify the employer in the course of Section 7 activity.” So, a broad ban on the use of the Company name or logo or trademark is considered improper. By contrast, the Company can restrict the illegal use of Company logos or trademarks, such as using them for a commercial purpose.

Many companies prohibit or restrict the use of photography or recording equipment on Company property. Doing so usually is for the very legitimate purpose of protecting the privacy interests of the Company and co-workers. The GC memo states: “Employees also have a Section 7 right to photograph and make recordings in furtherance of their protected concerted activity, including the right to use personal devices to take such pictures and recordings.” The NLRB considers rules placing a total ban on photography or recordings at the workplace to be unlawful. The GC memo gives very little guidance on what would be considered a proper restriction on photography and recording. The only example of a proper rule given is:

  • No cameras are to be allowed in store or parking lot without prior approval from the corporate office.

But that rule was considered proper only because it was imbedded in a media policy and was considered to be a restriction only on news cameras, not personal cameras.

TIP:  Make certain that restrictions on contact with the media clearly restrict only the employee’s contact with the media that might be considered to be on behalf of the Employer. Tailor restrictions on the use of logos or trademarks to prohibit only illegal use of those things for commercial purpose. Craft rules that restrict photography and recording so that they are clearly targeted at making images which either compromise the employer’s legitimate confidentiality interest (such as a ban on photographs in areas of the facility that might disclose confidential information) or protect legitimate employee privacy interests (such as bans on photography in locker rooms or other uniquely private areas).

Walking out

The right to strike is most commonly associated with union-represented employees. However, non-union employees also have the right to strike. As a result, the NLRB considers rules which state a broad prohibition against “walking off the job” to be an unlawful restriction on the right to strike. However, rules that are crafted specifically to protect against harm to production or customer interests are more likely to be unlawful.

TIP:  If you want to include a handbook a rule requiring employees to remain on the job, draft it so that it does not appear to ban a lawful strike. Stay away from broad phrases like “walking off the job” which might be read to include a legal work stoppage and instead refer to the employees’ obligation to arrive on time for each shift and not to leave before the end of the shift without permission.

Conclusion

The GC memo is a useful roadmap. However, trying to craft employer handbook policies to assure they would pass muster with the NLRB remains a challenge. Keep two key principles in mind: First, for any rules that restrict employee communication or conduct include sufficiently-specific examples or detail so that employees are not likely to construe the rules to mean that they are prohibited from discussing, debating, or even arguing about wages, hours, terms and conditions of employment. Second, context seems to be key to the NLRB. A rule which might otherwise be considered unlawful will pass review if it is stated in a context so that employees could not reasonably believe it to be a restriction on protected activity.

Employers can also consider including in the handbook a specific assurance that none of the handbook rules restrict employees from discussing their wages, hours or other working conditions or to restrict any other rights they have. There is no legal obligation to include that assurance, but it could reduce the chance that employees might misconstrue a rule. There are legal and practical issues to consider before including a disclaimer like this and employers are advised to discuss it with their legal counsel before taking this step.