On March 18, 2015, the Office of the General Counsel (the "General Counsel") of the National Labor Relations Board ("NLRB" or the "Board") issued Memorandum GC 15-04 (the "Memorandum") providing guidance regarding the legality of employer work rules. The Memorandum does not, in and of itself, represent a change in the law. Instead, the General Counsel published the Memorandum "to offer guidance on [his] views of this evolving area of labor law, with the hope that it will help employers to review their handbooks and other rules, and conform them, if necessary, to ensure they are lawful."
The General Counsel continues to review work rules under the test articulated in the Board's decision in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). Under Lutheran Heritage, a work rule need not explicitly restrict Section 7 protected activity to be found unlawful. Instead, a work rule will be deemed to be unlawful if: (i) employees would reasonably construe the rule's language to prohibit Section 7 activity; (ii) the rule was promulgated in response to union or other Section 7 activity; or (iii) the rule was actually applied to restrict the exercise of Section 7 activity.
In the first part of the Memorandum, the General Counsel provides examples of handbook rules that the Office of the General Counsel has evaluated pertaining to:
- Employee conduct toward the company and supervisors;
- Employee conduct toward fellow employees;
- Employee interaction with third parties;
- Employee use of company logos, copyrights, and trademarks;
- Restrictions on photography and recording;
- Restrictions on employee ability to leave work; and
- Conflicts of interest.
For each example, the Memorandum explains whether the General Counsel determined the rule to be lawful or unlawful and provides a brief explanation of the reasons for that conclusion. Moreover, in assessing the legality of the provisions, the General Counsel stresses that individual provisions of an employee handbook cannot be viewed in isolation but rather must be viewed in "context."
In the second part of the Memorandum, the General Counsel focuses on handbook rules in connection with a recently settled unfair labor practice charge. That settlement was negotiated following the General Counsel's initial determination that several of the employer's handbook rules were facially unlawful. The Memorandum sets forth those rules the General Counsel determined to be unlawful, including a discussion of the reasons for the General Counsel's conclusions. The General Counsel then provides the full text of the modified work rules the employer agreed to implement pursuant to the settlement, and which the General Counsel considers to be lawful. These include provisions relating to:
- Social media;
- Handbook disclosure;
- Employee compliance with law and related company policies;
- Conflicts of interest;
- Employee conduct;
- Solicitation and distribution; and
- Use of phones and recording devices.
While the Memorandum does not constitute a change in the law, it demonstrates that workplace rules continue to be one of the General Counsel's enforcement priorities. Indeed, "the Office of the General Counsel continues to receive meritorious charges alleging unlawful handbook rules," in part because "the law does not allow even well-intentioned rules that would inhibit employees from engaging in activities protected by the Act." Moreover, it is likely that disputes regarding the legality of work rules will continue to be an area of prolific litigation before the Board. Labor organizations and other employee advocacy groups have shown a keen interest in this evolving area of the law and likely will continue in their efforts to support charges claiming that employers are maintaining unlawful work rules. This is particularly true given that the General Counsel and the NLRB are likely to continue to broadly construe those circumstances under which "employees would reasonably construe a rule's language to prohibit Section 7 activity," such that the rule is deemed to be unlawful.
Failure to maintain lawful work rules can subject employers to significant unfair labor practice liabilities ranging from overturning employee discipline to invalidating thresults of a representation election where employees vote against union representation. As such, union and non-union employers alike should familiarize themselves with the Memorandum in order to better understand the General Counsel's views regarding the legality of employer work rules. While compliance with the views expressed in the Memorandum will not necessarily provide a safe harbor, particularly because the General Counsel stresses that work rules must be examined in "context," those employers who follow the General Counsel's guidance likely will mitigate exposure to unfair labor practice complaints. Additionally, employers should continue to monitor NLRB and circuit court decisions interpreting these issues and providing further guidance with respect to the evolving application of the Lutheran Heritage standard.
Given the speed at which this area of the law continues to evolve, employers are encouraged to review their work rules regularly in order to ensure that they are legally compliant.