Employee handbooks. Every company has one, but will yours pass NLRB scrutiny?

The National Labor Relations Board (NLRB) has actively expanded its focus and enforcement efforts into the area of employee handbooks and other employment policies it perceives as infringing on employees’ rights. While non-union employers may be wondering, “what does the NLRB have to do with me?” the Board has jurisdiction over nearly every employer, not just those with a union or facing a union organizing campaign.

Section 7 of the National Labor Relations Act (NLRA) grants all 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....” Section 8 of the NLRA makes it an “unfair labor practice” for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.” Increasingly, the NLRB has declared that many company policies – often historically accepted policies – violate Section 7 by impeding employees’ ability to engage in “concerted activities.”

On March 18, 2015, the NLRB issued a 30-page memorandum containing examples and guidance on what it views as lawful and unlawful handbook policies. The memorandum focuses on confidentiality rules, employee conduct, copyrights and conflicts of interest. The following highlights key takeaways from the Board’s memorandum:

  1. Confidentiality Policies. Employees have a Section 7 right to discuss wages, hours and other terms and conditions of employment with fellow employees. Thus, confidentiality policies that prohibit these activities, or have broad prohibitions on discussing “employee” or “personnel” information, are deemed unlawful by the NLRB. To balance these rules with a company’s interest in keeping certain business information confidential, policies should be narrowly drafted to refer specifically to the types of information protected, such astrade secrets orcustomer information. For example, a policy prohibiting employees from discussing “customer or employee information” outside of work, including “phone numbers [and] addresses” is unlawfully overbroad. But a more narrowly drafted policy prohibiting the disclosure of “confidential financial data, or other non-public proprietary company information” is lawful.
     
  2. Employee Conduct Toward Management. The NLRA protects employees’ rights to criticize their employers’ labor policies or treatment of employees to the extent such criticism pertains to the terms and conditions of employment. Thus, blanket policies restricting employees from engaging in protected concerted criticism of the employer will be deemed unlawful. For instance, a policy prohibiting employees from engaging in “disrespectful,” “negative,” “inappropriate,” or “rude” conduct toward the employer or management, absent clarification or context, is generally unlawful. On the other hand, a rule that requires employees to be respectful and professional toward co-workers, clients or vendors without mentioning management is lawful.
     
  3. Employee Conduct Toward Other Employees. Because employees have the right to argue and debate with each other about unions, management and the terms and conditions of employment, employers must be careful not to broadly prohibit inflammatory comments, “negative” discussions or vigorous debate without further clarification. For example, a policy prohibiting employees from sending “unwanted, offensive, or inappropriate” emails is unlawful, but one that prohibits “[t]hreatening, intimidating, coercing, or otherwise interfering with the job performance of fellow employees or visitors” is lawful.
     
  4. Employee Interaction with Third Parties. Section 7 also protects employees’ right to communicate with the news media, government agencies and other third parties about wages, benefits and other terms and conditions of employment. The Board points out that policies prohibiting employees from speaking to media are the most frequent offenders in this category. While employers want to control who makes official statements on behalf of the company, policies cannot restrict employees from speaking on their own behalf. Thus, a policy requiring employees to refer “all media inquiries” to the director of operations, “no questions asked,” is unlawful. But a policy informing employees that, in order to best manage crisis situations and reduce disruption to employees, the company will respond to the media only through a designated spokesperson is lawful.
     
  5. Use of Company Logos, Copyrights and Trademarks. While the Board recognizes that employers have a clear interest in protecting their intellectual property, employers may not place a broad ban on employees’ fair use of the company’s intellectual property. For instance, a policy prohibiting employees from using “any Company logos, trademarks, graphics, or advertising” in social media is unlawful. By contrast, a policy instructing employees to “[r]espect all copyright and other intellectual property laws” and not to “infringe on [company] logos, brand names, taglines, slogans, or other trademarks” is lawful.
     
  6. Restriction of Photography and Recording. Employees have a Section 7 right to photograph and make recordings in furtherance of protected concerted activity using their personal devices during breaks and on non-work time. Thus, an employer’s policy prohibiting employees from “[t]aking unauthorized pictures or video on company time” is unlawful. However, a policy prohibiting employees from recording in areas that would violate patient privacy or capture sensitive or confidential information is generally lawful.
     
  7. Restriction on Employees Leaving Work. Because the NLRA protects employees’ right to go on strike, policies that regulate when employees can leave work are unlawful if employees would reasonably read them to forbid strikes and walkouts. If, however, the policy makes no mention of strikes, walkouts, disruptions or the like, the rule will be found lawful. For example, a broad prohibition of “walking off the job” is unlawful, while a policy instructing employees that “leaving Company property without permission may result in discharge” is lawful.
     
  8. Conflict of Interest Rules. The NLRA protects employees’ rights to engage in concerted activity to improve their terms and conditions of employment, even if that activity is in conflict with the employer’s interests. For instance, employees may protest in front of the company, organize a boycott or solicit support for a union while on non-work time. Thus, a policy prohibiting employees from engaging in “any action” that is “not in the best interest” of the company is unlawful, while a policy requiring employees to agree not to “engage in any activity that might create a conflict of interest,” such as avoiding outside employment with a competitor, is lawful.

In summary, the memorandum makes clear that the Board intends to broadly apply and enforce its handbook rules. Employers should expect a continuous increase in the NLRB’s targeting of employee handbooks as the Board attempts to remain relevant in an ever-increasing non-unionized workforce. Accordingly, all employers, union and non-union alike, should take a close look at their handbooks to ensure they pass NLRB scrutiny.