Thanks very much to David Phippen from our Metro D.C. Office for letting me get some depositions taken this week and allowing me to republish his analysis here.

As we have previously reported, the National Labor Relations Board in recent years has put employee handbooks and policy manuals under a magnifying glass, searching for any provision that might, in its view, violate the National Labor Relations Act. Last week, apparently after hearing from labor law practitioners that guidance was needed, NLRB General Counsel Richard F. Griffin, Jr., issued a report attempting to explain several years of Board decisions and positions taken by his office. His stated goal was “to offer guidance on . . . this evolving area of labor law, with hope that it will help employers to review their handbooks and other rules, and conform them, if necessary, to ensure that they are lawful.”

Unfortunately, because the decisions and positions have often been inconsistent, the guidance provides few bright lines for employers to follow to ensure that their rules are lawful. But, perhaps worst of all, the General Counsel’s guidance follows the current Board majority view and, at least implicitly, largely rejects a balanced interpretation of the NLRA that gives sufficient weight to employers’ interests in managing their workplaces, protecting employees, and protecting confidential information and intellectual property.

Prudent employers will have their handbooks and policies reviewed by an experienced labor lawyer who understands Section 7 and has developed a keen appreciation for the direction in which the Board and the General Counsel are moving.

All employers, especially non-union employers not used to dealing day-to-day with the NLRA, should take note and get their employee handbook rules and policies in line with the GC’s expressed views. Employers found to be in violation can be ordered to rescind any unlawful rules and rescind and remedy any disciplinary action based on the rules. An unlawful rule can also be ground for the Board to set aside an NLRB election vote against union representation and direct a re-run election, thus giving the union another chance to win.

CATEGORIES OF RULES ADDRESSED IN THE REPORT

The General Counsel’s report addresses the following types of workplace rules:

  • confidentiality
  • conduct toward the employer and management
  • conduct toward co-workers
  • communications and interaction with outside parties and the media
  • use of logos, copyrights or trademarks
  • photography and recording in the workplace
  • leaving work or premises, or walking off the job
  • conflicts of interest

OVERVIEW OF THE GENERAL COUNSEL’S POSITION

The General Counsel expansively interprets what constitutes unlawful “interference” with the Section 7 right to engage in protected concerted activity. He generally views employer rules as unlawful when, in his view, an employee “would reasonably” construe a rule as prohibiting any form of protected concerted activity. It is not relevant that there may be no evidence that the policy language in fact restricted any employee’s actions, and there is no room for an employer to demonstrate that the GC’s view of how an employee “would reasonably” construe language is incorrect. A rule might be viewed as having a “chilling effect” even if the prohibited behavior is harmful to the employer, co-workers, third parties, or the public, and even if there are less-harmful ways for employees to dispute and communicate.

Given the GC’s perspective, an employee handbook rule generally is unlawful if any employee might interpret it as restricting any form of Section 7 activity, subject to some relatively limited exceptions. Exceptions may exist when the Board or GC views the rule as fostering some employer business interest that the Board or the GC deems “legitimate” and sufficiently weighty to justify some restriction of employee activity that otherwise would be protected.

Employers should also be aware that the GC views Section 7 activity as encompassing the nearly unfettered right of employees to strike, walk out, dispute, criticize, complain, and communicate, by nearly any means or method, and with nearly any content, to co-workers, management, third parties, the media, government officials, and the public, about nearly anything having to do with wages, hours, and other terms and conditions of employment. And even “wages, hours, and other terms and conditions of employment” is a term of art viewed expansively by the GC (for example, in the stated view of the GC it includes certain political activity).

A FEW “SAFE HARBORS” FOR EMPLOYERS?

On a more positive note, the GC’s report suggests that he does not consider certain workplace rules to be unlawful (the Board may or may not agree):

  • Rules prohibiting “unlawful” acts
  • Rules prohibiting “malicious” defamation
  • Rules prohibiting “disparagement” of the “employer’s product” (although “disparage” and “employer’s product” are interpreted narrowly
  • Rules prohibiting “knowingly” false statements
  • Rules requiring “respect for” copyright, trademark, and similar laws
  • Rules prohibiting disclosure of “trade secrets”
  • Rules prohibiting employees from making photographs or recordings during “working time” or of work areas (exceptions apply when the photography/recording is of activity protected by the NLRA, such as documenting health or safety issues, or a strike or work-related protest)
  • Rules prohibiting “financial” conflicts of interest
  • Rules requiring employees to work during “working time” (CAUTION: “working time” should not be confused with “on-duty time,” “company time,” shift time,” or “time on the clock”; “working time” is the time that an employee is engaged or should be engaged in performing his or her work tasks for the employer)
  • Rules prohibiting distribution of literature in “working areas” (CAUTION: “working areas” does not include areas that are used both for working and breaks)
  • Rules prohibiting distribution and solicitation during “working time” as defined above
  • Rules prohibiting employees from coming into the interior of the workplace for “any reason” during non-working time.

The above list is illustrative and should not be used as a substitute for legal advice on the subject. And just as the Board or the GC sometimes considers the surrounding context of an employee handbook rule’s language to determine its lawfulness (for example, placement of the rule language in a sexual harassment policy), employers are cautioned that an otherwise lawful rule might be found to be unlawful if the context gives it a potentially different meaning.

WHAT WASN’T IN THE REPORT

The General Counsel’s report did not claim to be an exhaustive review, and notably absent is any discussion of union-free statements, employment-at-will statements, binding dispute resolution and arbitration polices, and the newest type of handbook rule in the “interference” mix, an English-only rule, which recently was a matter of first impression before an administrative law judge of the Board. Unfortunately, the GC also does not meaningfully address the effect (if any) of so-called “savings language” in an employee handbook, such as, “Nothing in this handbook should be construed to prohibit any form of Section 7 activity under the National Labor Relations Act and nothing herein is intended to prevent, deter, or interfere with employees in the exercise of any employee rights under the National Labor Relations Act.” These subjects may get attention from the GC or the federal courts in the future.

CONCLUSION

The General Counsel’s report will certainly help employers understand the GC’s position, but employers may not like what they hear. Many employers are confused by what they see as a one-sided interpretation of the law and arguably strained, and often wholly out-of-context, “non-real-world” interpretation of employee handbook rules and other policies. Employers almost universally publish and enforce rules to advance legitimate business goals such as maintaining civil employee relations; providing useful information to employees to avoid lack of “fair notice”; fostering productive, profitable, and safe workplaces; and protecting Company investments in employee training and education, and intellectual property. Private sector employers are now on notice that the GC, when given the opportunity, will scrutinize employee handbook rules for a possible “chilling effect” on employees’ exercise of the right to engage in protected concerted activity.

To be in the best possible position to avoid unfair labor practice charges regarding employee handbook rules and other policies, employers should take the following steps, with the assistance of experienced labor counsel:

  • Review handbooks, policy manuals, social media policies, work rules, plant rules, and individual employee agreements – including confidentiality and non-disclosure agreements – to determine whether the language “could be” interpreted as interfering with Section 7 activity, and revise as needed
  • Revisions to policies and rules should be made before the employer has knowledge of any union organizing activity. (Changes to policies should be made only after consultation with labor counsel, and this is especially true if the employer is aware of organizing activity.)
  • Consider using specific examples of prohibited behavior, and consider a disclaimer or multiple disclaimers (including the “savings language” described above).
  • Although this approach has costs, consider dispensing with some general rules that attempt to encompass broad classes of bad behavior. If the behavior is egregious enough, you may be able to deal with it even if you don’t have a written policy.
  • In connection with rule-based discipline or discharge of an employee, carefully review the rule before taking the action and consider the potential for an “interference” or “discrimination” claim based on the rule itself or disparate enforcement of the rule even if it is otherwise lawful.