Earlier this month, the Office of the General Counsel (“OGC”) of the National Labor Relations Board (the “Board”) issued a thirty-page position statement regarding employer policies and compliance with the National Labor Relations Act (the “Act”). The memorandum underscores the Board’s and the OGC’s continued policing of even non-unionized employers’ policies. In his opening comments, the General Counsel observed, “Although I believe that most employers do not draft their employee handbooks with the object of prohibiting or restricting conduct protected by the [Act], the law does not allow even well-intentioned rules that would inhibit employees from engaging in activities protected by the Act.”
This is consistent with OGC and Board scrutiny of policies over the last several years, even in the absence of an unfair labor practice charge. As with prior memoranda on the issue, the memorandum provides insight into the OGC’s positions on employer policies and their potential to chill concerted activity regarding employees’ terms and conditions of employment. Among other things, the memorandum reviews what the OGG considers lawful and unlawful versions of confidentiality, professionalism, anti-harassment, trademark, photograph/recording, and media contact policies.
The OGC’s memorandum serves as a reminder that all employers must be careful that their policies do not overreach and potentially chill activity protected by the Act. Periodic review of handbooks and stand-alone policies by counsel knowledgeable in this area is an important step to ensure compliance.