On March 18, 2015, the National Labor Relations Board (“NLRB”) General Counsel, Richard Griffin, issued the “Report of the General Counsel Concerning Employer Rules,” a comprehensive report providing guidance to employers on what the NLRB deems to be lawful and unlawful company handbook provisions and policies. We strongly encourage all employers, union and non-union, to pay close attention to this new guidance from the NLRB.
By way of background, the NLRB is the federal agency created to enforce the National Labor Relations Act (“NLRA”). The NLRA is the federal law that grants employees the right to form or join unions and to engage in protected, concerted activity to address or improve working conditions. In this regard, the NLRB has started to closely scrutinize many commonly found work rules, policies and handbook provisions and is requiring that any policies that interfere with an employee’s rights under the NLRA be removed or revised. As you can imagine, the NLRB takes a very expansive approach on what language employees could reasonably construe as restricting their rights to engage in protected, concerted activity.
For employers who have not recently reviewed or updated their employment policies or rules, this Report is likely to be surprising. For example:
- A provision prohibiting being “disrespectful towards management” will virtually always be found to be unlawful as it inhibits protected criticism of the employer.
- A rule prohibiting “defamatory, libelous, slanderous or discriminatory comments about the company, its customers and/or competitors” is unlawful because it could be read to restrict employees from criticizing the employer in public.
- A rule stating “don’t pick fights” online is unlawful because employees could construe it to restrict “protected discussions with their coworkers.”
- A rule prohibiting making “insulting, embarrassing, hurtful or abusive comments about other employees online” is unlawful because debating about unionization is often contentious and controversial and the rule could be viewed by employees as “limiting their ability to honestly discuss such subjects.”
- A conflict of interest policy that “employees may not engage in ‘any action’ that is ‘not in the best interest of’ the employer” is unlawful because it does not include clarifying examples or context that would indicate that it does not apply to activities protected by the NLRA.
- A rule “not to use any company logos, trademarks, graphics or advertising materials” on social media is unlawful because it could be reasonably read to ban the fair use of the employer’s intellectual property in the course of protecting concerted activity.
- A rule prohibiting “walking off a job” is unlawful because it could reasonably be read to prohibit protected strikes and walkouts.
Employers should expect the NLRB to continue to closely scrutinize employment policies of both union and non-union companies, as set forth in the attached Report. Employers are therefore well-advised to carefully review their employment policies to make sure that they comply with the NLRB’s current interpretations of the NLRA.