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NLRB General Counsel Provides Detailed Guidance on Employee Handbooks and Other Workplace Rules

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March 2015 | Legal Advisory

Section 7 of the National Labor Relations Act (NLRA) provides both unionized and non-unionized employees the right to engage in “concerted activities” for “mutual aid or protection.”1 It therefore is significant that, on March 18, 2015, the General Counsel of the National Labor Relations Board (NLRB) published a 30-page memorandum reporting on Section 7 rights in the context of eight types of employer rules, many of which are published in employee handbooks.2 Employers would do well to heed this memorandum. Without regard to whether all courts would agree with the memorandum in all ways, it at least provides insight into the views of the government official most responsible for investigating and prosecuting unfair labor practices.3

The points explained in the memorandum are as summarized below.4

1. Rules about confidentiality

Employees have a right to discuss wages, hours, and other terms and conditions of employment with both fellow employees and nonemployees. Any rule against discussing terms and conditions of employment (e.g., wages, hours, or workplace complaints) or a rule that employees would reasonably understand to prohibit such discussions, violates Section 7.

Similarly, any restriction on discussion that broadly encompasses "employee" or "personnel" information, without further clarification, will be unlawful because it reasonably will be construed by employees to restrict protected communications.

On the other hand, employer rules against disclosing confidential information are lawful as long as they do not reference information regarding employees or anything that would reasonably be considered a term or condition of employment. Employers have a legitimate interest in maintaining the privacy of certain business information.

2. Rules about conduct toward the company and supervisors

Employees have a right to criticize or protest their employer's labor policies or treatment of employees. As a result, rules reasonably read to prohibit protected concerted criticism of the employer will be unlawfully overbroad. And “a rule that prohibits employees from engaging in ‘disrespectful,’ ‘negative,’ ‘inappropriate,’ or ‘rude’ conduct towards the employer or management, absent sufficient clarification or context, will usually be found unlawful.” Moreover, an employee’s criticism of an employer does not lose its protection simply because it is false or defamatory; thus, according to the General Counsel, only maliciously false statements may be prohibited by employer rules.

On the other hand, a rule that requires employees to be respectful and professional to coworkers, clients, or competitors, but not the employer or management, will generally be found lawful. Employers have a legitimate business interest in having employees act professionally and courteously in their dealings with coworkers, customers, employer business partners, and other third parties. Rules prohibiting conduct that amounts to insubordination also are lawful.

3. Rules about conduct toward fellow employees

Employees have a right to argue and debate with each other about unions, management, and their terms and conditions of employment, even though these discussions can become contentious. As a result, an employer cannot ban "negative" or "inappropriate" discussions among its employees, without further clarification.

And even though employers have a legitimate and substantial interest in maintaining a harassment-free workplace, anti-harassment rules cannot be so broad that employees would reasonably read them as prohibiting vigorous debate or intemperate comments regarding protected subjects.

4. Rules about interaction with third parties

Employees have a right to communicate with the news media, government agencies, and other third parties about wages, benefits, and other terms and conditions of employment. Rules that reasonably would be read to restrict such communications are unlawful.

While employers lawfully may have media policies about who can make official statements for the company, they must be careful to ensure that their rules would not reasonably be read to ban employees from speaking to the media or other third parties in their own or their fellow employees’ behalf.

5. Rules restricting use of company logos, copyrights, and trademarks

Copyright holders can protect their intellectual property. But employers cannot have rules that prohibit employees' fair protected use of that property. The General Counsel explains this as follows:

[A] company's name and logo will usually be protected by intellectual property laws, but employees have a right to use the name and logo on picket signs, leaflets, and other protest material. Employer proprietary interests are not implicated by employees' non-commercial use of a name, logo, or other trademark to identify the employer in the course of Section 7 activity. Thus, a broad ban on such use without any clarification will generally be found unlawfully overbroad.

6. Rules restricting photography and recording

Employees have a right to photograph and make recordings in furtherance of their protected concerted activity. Rules placing a total ban on such photography or recordings, or banning the use or possession of personal cameras or recording devices, are unlawfully overbroad where they would reasonably be read to prohibit the taking of pictures or recordings on non-work time.

7. Rules about restrictions on leaving work

The right to strike is a fundamental right. Accordingly, rules regulating when employees can leave work are unlawful if employees reasonably would read them to forbid protected strike actions and walkouts. But “if such a rule makes no mention of ‘strikes,’ ‘walkouts,’ ‘disruptions,’ or the like, employees will reasonably understand the rule to pertain to employees leaving their posts for reasons unrelated to protected concerted activity, and the rule will be found lawful.”

8. Conflict-of-interest rules

An employer's conflict-of-interest rule is unlawful if it would reasonably be read to prohibit protected activities. Conflict-of-interest rules therefore are impermissible if they reasonably can be read to prohibit protesting in front of the company, organizing boycotts, or soliciting support for a union while on non-work time.

On the other hand, if the conflict-of-interest rule includes examples, or if it otherwise clarifies that its application is limited to legitimate business interests, it will be lawful, because “employees will reasonably understand the rule to prohibit only unprotected activity.”

1 29 U.S.C. § 157. An employer commits an unfair labor practice if it interferes with, restrains, or coerces an employee in the exercise of that right. 29 U.S.C. § 158(a)(1).
2 Report of the General Counsel Concerning Employer Rules, Memorandum GC 15-04 (Mar. 18, 2015).
3 As the Presidential appointee primarily responsible for investigating and prosecuting unfair labor practices, the General Counsel supervises case processing by the NLRB field offices.
4 The General Counsel’s memorandum also provides specific examples of rules found to be lawful or unlawful.

This advisory was prepared by David C. Henderson, a member of the Labor, Employment and Benefits practice group at Nutter McClennen & Fish LLP. For more information, please contact David at 617.439.2345 or your Nutter attorney at 617.439.2000.

This advisory is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.

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