In its March 2015 guidance, the National Labor Relations Board (NLRB) made it clear that it intends to target employer policies that could be construed as restricting Section 7 of the National Labor Relations Act (NLRA). Keep in mind, Section 7 of the NLRA allows employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection," as well as the right "to refrain from any or all such activities."

Indeed, since issuing that memorandum, employers have seen the NLRB place increased scrutiny on employee handbooks, with commonplace policies being found to violate Section 7. To complicate matters, the NLRB regularly uses the standard of whether employees could construe employer policies as restrictive when making its determinations in these matters, even if the policy has not been enforced against an employee.

As a reminder, the March 2015 memorandum of the Office of the General Counsel of the NLRB set forth specific examples of employer confidentiality rules that the NLRB determined unlawful under the NLRA:

  • Do not discuss "customer or employee information" outside of work, including "phone numbers [and] addresses."
  • "Never publish or disclose [the Employer's] or another's confidential or other proprietary information. Never publish or report on conversations that are meant to be private or internal to [the Employer]."
  • "[I]f something is not public information, you must not share it."

With regard to employer policies related to the conduct of employees, the March 2015 memorandum also outlined examples of unlawful rules:

  • Do not make "insulting, embarrassing, hurtful or abusive comments about other company employees online," and "avoid the use of offensive, derogatory, or prejudicial comments."
  • "[S]how proper consideration for others' privacy and for topics that may be considered objectionable or inflammatory, such as politics and religion."
  • Do not send "unwanted, offensive, or inappropriate" e-mails.

Recent decisions by administrative law judges (ALJ) agreeing with NLRB determinations, highlight the success the board has had in its campaign to put employer policies under the microscope.

In a July 2016 decision, an ALJ determined that an employer’s policy restricting personal business on company property to be unlawful. There, the employer’s policy required employees to use company property only for “business purposes” and it prohibited employees from conducting “personal business or business for another employee during their scheduled working hours” as unlawful. This might sound reasonable and even familiar to many employers…

The ALJ disagreed.

In finding the policy overbroad under the NLRA, the ALJ determined that the prohibition against conducting "personal business" on company property and at work can “reasonably be read to restrict the communications of employees with each other about union or other Section 7 protected rights in non-work areas and on non-work time.”

Likewise, in another recent decision, an ALJ agreed with the NLRB in finding an employer’s policy on maintaining a positive work environment unlawful. There, the employer stated that it “expects all employees to behave in a professional manner that promotes efficiency, productivity, and cooperation” and that “[e]mployees are expected to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers, and management.” Again, this policy might sound reasonable and common to many employers…

Again – the ALJ disagreed.

Similarly, the ALJ found that the employer’s positivity policy could reasonably be construed by employees as restricting potentially “controversial or contentious communications and discussions, including those protected by Section 7” and deemed it unlawful.

The NLRB has also put numerous other employer policies under similar scrutiny and found them to be unlawful under Section 7: social media policies, policies related to use of company logos and trademarks, solicitation and distribution policies, to name a few.

As the above developments illustrate, union and non-union employers should take a close look at their employee handbooks and personnel policies. Seemingly commonplace employer rules now may result in a challenge by the NLRB. Reviewing and revising such rules now can thwart such challenges and even minor wording changes can prove helpful.