The General Counsel of the National Labor Relations Board (“NLRB”) recently issued a 30 page report summarizing its position on employer work rules (such as, most commonly, employee handbooks) and providing examples of what does and does not have a “chilling effect” on possible concerted (i.e., potential union) activity as defined by Section 7 of the National Labor Relations Act (“NLRA”). Specifically, the report provided guidance within a framework articulated by the Board’s decision in Lutheran Heritage Village-Livonia, wherein the Board found that the mere existence of a work rule – no matter how well intended – can have a chilling effect on an employee exercising his or her Section 7 rights if: (1) employees would reasonably construe the rule’s language to prohibit Section 7 activity; (2) the rule was promulgated in response to union or other Section 7 Activity; or (3) the rule was actually applied to restrict the exercise of Section 7 rights. Unsurprisingly, the vast majority of violations are found under the first prong of this test.
The report was divided into two parts, the first of which provided examples of lawful and unlawful workplace rules and is the focus of this article. Second, it examined certain handbook rules from a recently settled Unfair Labor Practice Charge against Wendy’s International LLC.
The report provided the following categories of rules with specific examples of what does and does not pass muster:
Rules Regarding Confidentiality
Employees have a Section 7 right to discuss wages, hours, and other terms and conditions of employment with fellow employees and other nonemployees, including union representatives. The confidentiality provisions of employee handbooks can thus violate the law if not artfully prepared. Rules prohibiting the discussion of the “terms and conditions of employment” are a no-no, while rules that prohibit the disclosure of legitimately confidential employer information are acceptable.
The following is a sampling of the confidentiality rules deemed unlawful:
- Do not discuss customer or employee information outside of work, including phone numbers and addresses. The prohibition of disclosing “employee information” was impermissible.
- Discuss work matters only with other employees who have a specific business reason to know or have access to such information. Do not discuss work matters in public places. This is far too broad and thus unlawful.
- If something is not public information, you must not share it. Again, this prohibition is too broad and thus unlawful.
The following is a sampling of the confidentiality rules deemed lawful, as each did not reference employee information, were not overbroad, and did not contain language that would reasonably be construed to prohibit Section 7 communications:
- Unauthorized disclosure of “business secrets” or other confidential information.
- Do not disclose confidential financial data, or other nonpublic proprietary company information. Do not share confidential information regarding business partners, vendors or customers.
Rules Regarding Employee Conduct Toward the Company and Supervisors
Employees have a Section 7 right to criticize or protest their employer’s labor policies or treatment of employees, both while at work and in the public forum. While rules banning “insubordination” are generally permissible, rules that amount to a blanket ban of “disrespectful,” “negative,” “inappropriate,” or “rude” conduct toward management might be unlawful, depending on the context. By contrast, the same language aimed at employees’ conduct toward co-workers, clients, or competitors is lawful because employers have a legitimate business interest in having employees act professionally and courteously toward non-management individuals, subject to certain caveats discussed below.
The following is a sampling of rules dealing with management deemed unlawful:
- Be respectful to the company, other employees, customers, partners, and competitors. The inclusion of “the company” made this rule impermissible.
- No defamatory, libelous, slanderous or discriminatory comments about the company, its customers and or competitors its employees or management.Again, the inclusion of the “management” language tipped the scales against this rule.
- Disrespectful conduct or insubordination, including, but not limited to, refusing to follow orders from a supervisor or a designated representative. The report noted that while this rule bans insubordination, it also bans conduct that does not rise to such a level, which could include certain protected concerted activity.
- Refrain from any action that would harm persons or property or cause damage to the company’s reputation. The report maintained that this rule (and others like it) was unlawfully broad because it could be reasonably read to require employees to refrain from criticizing the employer in public.
By contrast, the following were lawful:
- No “rudeness or unprofessional behavior toward a customer, or anyone in contact” with the company. Again, this is acceptable because it did not mention “management” or “the company.”
- Each employee is expected to work in a cooperative manner with management/supervision, coworkers, customers, and vendors. Here, the emphasis of the rule is the performance of the employees, as opposed to the communicative components of employment. It was thus permissible.
- Each employee is expected to abide by Company policies and to cooperate fully in any investigation that the Company may overtake. This rule was acceptable because it plainly pertained to workplace investigations rather than investigations of unfair labor practices or preparations for arbitrations.
Rules Regarding Employee Conduct Toward Fellow Employees
In addition to employees’ rights to discuss their terms and conditions of employment and/or criticize their employers’ labor practices, employees also have a right to argue and debate with each other about unions, management, and the like. Thus, when an employer bans all “negative” or “inappropriate” discussions among employees, without further clarification, such rules can be reasonably read to prohibit discussions and interactions that are protected.
The following is a sampling of unlawful “employee-employee” conduct rules:
- Don’t pick fights online. Far too broad.
- Show proper consideration for others’ privacy rights and for topics that may be considered objectionable or inflammatory, such as politics and religion. Discussion of unionization would likely be chilled by this rule because it can be an “inflammatory” topic.
- Do not send unwanted, offense, or inappropriate emails. This rule was too vague and overbroad.
By contrast, the following were lawful:
- Do not make inappropriate gestures, including visual staring.
- Threatening, intimidating, coercing, or otherwise interfering with the job performance of fellow employees or visitors. This simply requires that employees be respectful and cooperate with their co-workers.
- No harassment of employees, patients, or facility visitors. Harassment is distinct from contentious communication.
Rules Regarding Employee Interaction with Third Parties
Employees have a right to communicate with news media, government agencies, or other third parties regarding the terms and conditions of their employment. Handbook rules that unreasonably restrict such communication are unlawful.
The following is a sampling of “third party communication” rules deemed unlawful:
- Employees are not authorized to speak to any representatives of the print and/or electronic media about company matters unless designated to do so by HR, and must refer all media inquiries to the company media hotline. The inclusion of “company matters,” without limiting language or context, made this rule overbroad and therefore impermissible.
- If you are contacted by any government agency, you should contact the law department immediately for assistance. This was deemed unlawful because it could be reasonably read as restricting protected communications with government agencies.
- All inquiries from the media must be referred to the Director of Operations in the corporate office, no exceptions. This rule was plainly overbroad and unlawful.
By contrast, this rule is lawful:
- The company strives to anticipate and manage crisis situations in order to reduce disruption to our employees and to have met and to maintain our reputation as a high-quality company. To best serve these objectives, the company will respond to the news media in a timely and professional manner only through the designated spokespersons. This rule is lawful because it specifically referred to employee contact with the media regarding non-Section 7 matters (namely crisis situations) and was also not a blanket prohibition on all contact with the media.
Rules Regarding Use of Company Logos, Copyrights, and Trademarks
Though copyright holders have a right to protect their intellectual property, company rules cannot prohibit employees’ fair protected use of them. The easiest example of this is an employee’s right to use company logos on picket signs, leaflets, etc.
The following is a sampling of rules deemed unlawful because of over-breadth:
- Do not use Company logos, trademarks, graphics, or advertising materials in social media.
- Company logos and trademarks may not be used without written consent.
By contrast, this rule was lawful as it simply requires employees to respect copyright laws:
- Respect all copyright and other intellectual property laws. For [the employer’s] protection as well as your own, it is critical that you show proper respect for the laws governing copyrights, fair use of copyrighted material, owned by others, trademarks and other intellectual property, including [the employer’s] own copyrights, trademarks, and brands.
In addition to the foregoing topics, the report discussed company rules regarding photography and recording, restrictions on leaving work, and certain conflict of interest issues. While the report provides helpful clarity to these challenges, employers should note that each unfair labor practice charge is decided on its own facts, and the actions and statements of employers and supervisors in connection with the application and enforcement of a particular provision will almost always be relevant to the determination. Moreover, employers should avoid relying too heavily on the content of the report, as the guidance therein can be subject to change.