On March 18, 2015, the Office of the General Counsel for the National Labor Relations Board (NLRB) released a memorandum regarding employer policies that are allegedly overbroad and unlawful under the National Labor Relations Act (NLRA). Many of the challenged policies are commonplace and not intuitively questionable from a legal perspective. The NLRB has challenged similar policies before, including a seemingly innocuous “be nice” policy.
The memorandum covers a number of different types of policies, such as confidentiality, employee conduct, communications with third parties, use of employer logos or trademarks, and conflicts of interest. Some of the policies identified as allegedly overbroad and illegal under the NLRA include the following:
- “If something is not public information, you must not share it.”
- “Be respectful of others and the Company.”
- “Do not make fun of, denigrate, of defame your co-workers, customers, franchisees, suppliers, the Company, or our competitors.”
- “Don’t pick fights online.”
- “Do not make insulting, embarrassing, hurtful or abusive comments about other company employees online, and avoid the use of offensive, derogatory, or prejudicial comments.”
The NLRB general counsel argues that these policies may chill employees in the exercise of their right under Section 7 of the NLRA to engage in concerted activities for mutual aid and protection, like union organizing. See 29 U.S.C. § 157. For example, the memorandum warns that employees may interpret overbroad confidentiality policies to include information about employee wages and benefits and other terms and conditions of employment. The memorandum also explains that because “protected concerted activity is often contentious and controversial, employees would reasonably read a rule that bans ‘offensive,’ ‘derogatory,’ ‘insulting,’ or ‘embarrassing’ comments as limiting their ability to honestly discuss such subjects.”
One of the positive aspects of the memorandum is that it provides examples of some employer policies that the NLRB considers to be lawful. For example, a rule prohibiting disclosure of “business secrets or other confidential information” would likely be acceptable, as would a rule prohibiting “rudeness or unprofessional behavior toward a customer, or anyone in contact with the company.” For employers looking for NLRB-approved sample policy language, the memorandum is a good resource.
Takeaway: Employers with employee handbooks should review their policies in light of the new NLRB general counsel memorandum. It is not clear whether courts will agree with all of the positions stated in the memorandum, but following the guidance should reduce the risk of unfair labor practice charges.