Employers who don’t want their policies sliced down by the National Labor Relations Board’s sickle, something that can spur union organizing and undermine disciplinary structure, should revise their policies (in handbooks or elsewhere) with specific examples of prohibited conduct. That’s the way, according to the little-noticed March 18, 2015 memo from the NLRB’s General Counsel, to make sure employees don’t infer from “overbroad” or “vague” polices that their rights under the National Labor Relations Act have been abridged. Fortunately, the GC’s 30-page memo provides 63 categorized examples plus a pre- and post-revision handbook for guidance.
For those late to the party, the NLRB is continuing its hunt for employer policies which inhibit employees’ (union or non-union) exercise of rights to engage in protected, concerted activity under the NLRA. This covers everything from complaining about wages to bathroom cleanliness (terms and conditions of employment). And under the GC’s enforcement agenda, even language that could theoretically “chill” (i.e., negatively influence) an employee from engaging in such activities violates the NLRA. A disclaimer in a handbook is inadequate. So is a history of not using policies to squash NLRA rights.
Assuming you want to avoid confrontation with the NLRB and potential appeal to the Courts of Appeal (a valid path some choose), here is what to do per the March 18 memo.
The first step is to delete or rework any expressly unlawful provisions, such as those prohibiting the discussion of terms and conditions of employment (e.g., “no discussing your pay and benefits with co-workers.”)
The second step is to see if any of your policies are vague enough to be misinterpreted as restricting protected, concerted activity. Look for language that could be read as prohibiting criticism of company policies, or which includes hot button terms like “negative” or “disrespectful” behavior. (Remember, the NLRB believes even profane outbursts at supervisors may be protected.) Then, redraft such policies to narrow them with detailed examples or definitions, to provide undeniable context that protected, concerted activity is not encompassed.
For drafting guidance, the GC’s March 18 memo provides language that was initially deemed unlawful but then passed muster after revision. Many of the revised policies added examples or definitions within parentheticals (a simple yet effective drafting technique).
Click here to view table.
The GC’s memo provides many more examples of lawful and unlawful provisions (plus commentary) for those looking to work with counsel to batten down the hatches in the face of NLRB scrutiny. However, even for those not planning to revise based on the GC’s memo (which does not technically constitute law), a review is still warranted to gain insight into the enforcement trajectory and philosophy of the current GC. Further, when faced with investigations or Unfair Labor Practice litigation, employers should offensively cite the GC’s memo for the proposition that context (in the form of examples or definitions) excuses otherwise impermissibly overbroad language.