The general counsel for the National Labor Relations Board (“NLRB”) recently issued guidance for employers in crafting employee handbook provisions that will withstand Board scrutiny in the wake of a recent settlement of an unfair labor practice charge against Wendy’s International LLC. The 30-page report, which addresses what the general counsel describes as an “evolving area of labor law,” attempts to clarify the types of policies that the general counsel believes may have a chilling effect on employees’ concerted activities protected by Section 7 of the National Labor Relations Act (“NLRA”). If the report makes one thing clear, it is that many common, longstanding, and seemingly benign policies maintained by employers throughout the country may need to be reexamined for compliance.
The report stresses that the NLRA prohibits “even well-intentioned rules that would inhibit employees from engaging in activities protected by the Act.” Thus, even where a policy does not expressly ban Section 7 activities, it may still violate the Act where employees would “reasonably construe” the policy’s language to prohibit them. The report goes on to provide a number of examples of policies “frequently at issue,” with attention to language that may render them unlawful.
For example, the report first addresses employer confidentiality provisions, including those that prohibit the disclosure of “employee information” or “another’s confidential or other proprietary information.” According to the general counsel, such provisions are overbroad, because employees could reasonably interpret them to prohibit discussions about their wages, hours, workplace complaints, or other terms and conditions of employment. Policies that generally prohibit disclosure of “details” or nonpublic information about the employer are similarly overbroad in his view, where they are not narrowly tailored to protect against the unauthorized disclosure of information such as trade secrets.
Employee conduct provisions are also highlighted in the report. According to the general counsel, provisions simply instructing employees to “be respectful” of others and the Company may be deemed unlawfully overbroad, because employees could reasonably construe such provisions to ban protected criticism or protests regarding their supervisors, management, or the employer, generally. Anti-harassment policies that prohibit “offensive,” “derogatory,” or “insulting” comments in the workplace may also be deemed unlawful, because, according to the general counsel, “debate about unionization and other protected concerted activity is often contentious and controversial,” and employees may interpret the policies to limit their ability to discuss such topics.
Even policies aimed at ensuring that employees perform their most basic job responsibilities may pose concerns regarding compliance. For example, the general counsel states that policies prohibiting employees from “walking off the job” may be found to be unlawful, because such language could be reasonably read to include protected strikes and walkouts. In contrast, the general counsel indicated that a prohibition on employees “leaving Company property without permission” has been found to be lawful, because its language does not carry the same strike-related connotations as phrases like “walking off the job” or “work stoppage.”
These are just a few examples addressed in the general counsel’s report, but they serve to illustrate what is often a fine line between lawful and unlawful handbook policies in his view. As demonstrated above, the difference between the two may not always be obvious or intuitive to the employer. Moreover, the report emphasizes that whether a particular provision is lawful may depend on its context, such as the industry in which the employee works or the policy’s location within the handbook. Thus, the determination regarding a policy’s lawfulness is often fact-intensive. Further complicating matters is the potential tension between the general counsel’s guidance and policies employers have adopted to comply with their numerous other obligations, such as preventing discrimination and harassment in the workplace. Given the NLRB’s recent activity and stated focus on employers’ handbook provisions, employers should consider taking a fresh look at their handbook policies to identify and evaluate the risk of any potential compliance issues.