On 18 March 2015, the NLRB's Office of the General Counsel issued a Memorandum outlining those employer rules found to pass muster under the National Labor Relations Act and those found to be unlawful. The memo is a "must read" for in-house attorneys and HR professionals responsible for employee rules and policies, codes of conduct and employee discipline for both union and non-unionized workforces. You can read the GC's memo here.

As we highlighted in our 2014 Labor Year in Review, the NLRB continues to aggressively pursue employers for violating employees' Section 7 rights based on common employer rules policies, including those addressing confidentiality and proprietary information; employee conduct toward the company and supervisors, other employees and third parties; communications with the media and other outside parties; company logos, copyrights and trademarks; photography/recording; electronic communications; leaving work; access to the workplace; and conflicts of interest.

Section 7 of the NLRA gives both union and non-union employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The General Counsel has mandated that cases involving issues of high importance to the GC’s agenda (primarily those listed above) are referred to the Division of Advice during investigation, which allows the GC’s involvement in shaping the enforcement agenda. You can review the GC's Memorandum regarding Mandatory Submissions to Advice here.

While the GC's March 18 Memorandum provides insight into how the General Counsel and the NLRB are likely to view key employee policies, the rationale provided for the different outcomes in some cases is unclear at best. In addition, many policies found to be unlawful were clearly driven by the employer’s well-intentioned desire to address other public policy and regulatory concerns such as protection of proprietary information, prevention of insider trading and anti-trust violations, and compliance with the SEC's Regulation FD (Fair Disclosure) or disclosure requirements under FTC regulations. In order to balance these and other competing interests, it is clear that employers cannot eliminate compliance risk by simply adopting the "lawful" language cited in the Memorandum. 

The good news is that the NLRB has been evaluating cases independently of the GC's agenda; the GC's position has been rejected by the NLRB (and federal courts) in numerous cases. Nonetheless, employers who have not updated their employee handbooks, codes of conduct, proprietary information and confidentiality agreements or other policies where such provisions often arise should do so now. Employers can expect continued enforcement in 2015, and the precise wording of employer policies and work rules can make all the difference when it comes to assessing their validity under the NLRA, while also ensuring that good corporate governance is not compromised.