Most employers already know they cannot forbid employees from criticizing management, workplace conditions, or discussing salaries in person or on the Internet. Employers cannot forbid employees from posting comments — both good and bad — on social media, as long as the comments are not unlawful. And though an employer must put its employees on notice of behavior that is unacceptable and that could lead to termination, that notice must be given in a way that does not cause the employees to “reasonably believe,” even wrongly, that they are prohibited from engaging in the concerted activity protected by section 7 of the National Labor Relations Act.
It’s one thing to know the rules, it’s quite another to implement them properly.
Up until now, deciding what might cause an employee to “reasonably believe” they are prohibited from engaging in protected activity was pretty subjective. Indeed, it still is. That’s why the National Labor Relations Board’s general counsel recently released a 30-page memo offering guidance to employers on how to write employee handbooks in a way that doesn’t violate the National Labor Relations Act. We include a few tips here:
Be specific about the term “confidentiality.” For example, prohibiting disclosure of “business secrets or other confidential information” is okay, but telling employees not to “discuss work matters in public places” is not.
Context matters. A confidentiality provision that prohibits “disclosure of all information acquired in the course of one’s work,” while facially overbroad, would pass muster when nestled among other provisions relating to conflicts of interest and compliance with state and federal regulations. The same hold true for other provisions. For example, a general ban on “derogatory comments” is not allowed, though a ban on “the use of racial slurs, derogatory comments, or insults” would be allowed if such rule were contained within a section dealing exclusively with unlawful harassment and discrimination.
Employers should avoid telling employees to simply “be respectful to the company, other employees, customers, partners, and competitors” or to avoid posting “statements that damage the company or the company’s reputation…” on social media. But apparently admonishing “rudeness or unprofessional behavior toward a customer or anyone in contact with the company” would be deemed acceptable.
Admonishments that are generalized and overbroad in nature will not pass muster with the NLRB in the event the policy is reviewed in litigation. So it’s best to be as specific as possible, and give examples of the prohibited conduct, in order to make clear the behavior that is prohibited and not give the impression that employees are barred from exercising their right to engage in activity protected under section 7.
The NLRB’s general counsel issued the guidance with an eye toward helping employers conform their handbooks to the law. It’s worth a read.