Most employers these days have handbooks that contain policies regarding things like confidentiality, employee conduct, use of company logos/trademarks, social media, etc. These policies are usually drawn with a careful eye toward state and federal employment law but may overlook another critical law, the National Labor Relations Act (“NLRA”). For example, did you know that a rule prohibiting employees from wearing cell phones, making personal calls or sending texts, “while on duty” would be unlawful under the NLRA? Replacing the phrase “while on duty” to “during work time,” however, is enough to put you on the right side of the law. We sometimes hear employers complain that the NLRB is playing “gotcha” over each individual word of their handbook policies. The fact is, each and every word matters and the new GC memo provides a bit of insight as to how the NLRB evaluates them.
The mere existence of an unlawful rule may be enough to violate the NLRA if the rule has a chilling effect on employees’ right to engage in concerted activity. It is not required that the employer actually discipline anyone under the rule.
Today, the National Labor Relations Board’s General Counsel issued a 30-page memo outlining what he sees as the “dos” and “don’ts” for employer rules. The memo provides examples of rules and policies that the NLRB considers unlawful, a short explanation why they are unlawful and a few more examples of policies the General Counsel says would be acceptable. For employers who feel as though they are constantly trying to hit a moving target when it comes to complying with the NLRA, this memo offers a bit of help.
A PDF copy of Memorandum GC 15-04 can be found here.