EMPLOYERS BEWARE: RECENT NLRB CHANGES IMPACT EMPLOYEE HANDBOOKS

Employers large and small are familiar with the concept of employee handbooks as standard communication devices in many American workplaces.  Handbooks typically describe the company and its business, set standards of conduct, and establish or diminish employee expectations regarding the employment relationship.

Recently, the National Labor Relations Board has sparked intense conversation regarding the legality of a large number of typical handbook topics. So much so, that on March 18, 2015, the General Counsel of the NLRB issued a report outlining certain employee handbook language, which the Board will consider violative of the Act.

In essence, the Board concludes that if an “employee would reasonably construe” handbook language to prohibit or restrict employee rights protected by Section 7 of the National Labor Relations Act, such language violates the Act.  Section 7 of the Act guarantees employees, “the right to self organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

In a nonunion setting special attention must be given to the concept of “protected, concerted activity relating to wages, hours, and working conditions.”  This refers directly to employee communications and activity, which speaks to their status as employees and their relations with other employees and with the company.  Any handbook language which when, “reasonably construed,” restricts these communications and activities will be found by the Board to be violative of the Act.

Some topics typically included in an employee handbook, which can become problematic are as follows:

Confidentiality Rules

Because employees have the right to discuss their employment situation and the company policies that affect it, blanket confidentiality rules will be found violative.  According to the General Counsel Memorandum, the following confidentiality rules are overly broad and presumptively violative.

  • Prohibiting employees from “disclosing details about the employer”
  • “Sharing of overheard conversations at the worksite with your coworkers, the public, or anyone outside of your immediate work group is specifically prohibited”
  • “Discuss work matters only with other employees who have a specific reason to know or have access to such information…Do not discuss work matters in public places”
  • “If something is not public information, you must not share it”

However confidentiality rules which speak to “business secrets, financial data, business partners, vendors, or other non-public, proprietary company information” are presumptively lawful in that such rules can not be “reasonably construed” to interfere with legitimate employee rights.

Rules regarding Use of Company Logos, Copyrights, and Trademarks

Employees have a section 7 right to use a company’s intellectual property, such as logos, copyrights, and trademarks, in furtherance of their concerted activity.  As such overly broad policies that prohibit fair protected uses of that property, like on protest materials such as signs or leaflets, will be found violative.  The following rules have been held unlawfully overbroad:

  • “Do ‘not use any Company logos, trademarks, graphics, or advertising materials’ in social media.”
  • “Company logos and trademarks may not be used without written consent…”
  • “Use of [the Employer’s] name, address or other information in your personal profile [is banned]….  In addition, it is prohibited to use [the Employer’s] logo, trademarks or any other copyrighted material.”

The theme with these unlawful rules is that they may restrict non-commercial use of a company’s intellectual property in the course of a section 7 activity.  Rules narrowly tailored to proprietary interest will not face the same scrutiny from the Board.

Rules regarding Employee Conduct toward the Employer

Regrettably, employees are not required to express their employment concerns in a measured, polite manner.

Indeed, employees are allowed a wide range of voices in their pronouncements ranging from inane to disrespectful to profane.  Handbook rules regulating employee conduct toward the Employer will be examined very closely by the Board.  Some examples of overly broad rules are as follows:

  • “Be respectful to the company, other employees, customers, partners, and competitors”
  • “Do not make fun of, denigrate, or defame your co-workers, customers, franchisees, suppliers, the Company, or our competitors”
  • “Be respectful of others and the Company”
  • “Refrain from any action that harm persons or property or cause damage to the Company’s business and reputation”

The common thread in these unlawful rules of conduct is that they are overly broad restrictions on the employees’ rights to be critical of the company.  Rules that are more tightly drafted or rules prohibiting discourteous conduct toward other employees, customers, and the general public will not face the same scrutiny from the Board.

Handbook Rules Restricting Photography and Recording

Employees have a Section 7 right to photograph and make recordings in furtherance of their protected concerted activity, including the right to use personal devices to take such pictures and recordings.  Thus, 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, The General Counsel in his March 2015 memorandum states that the following handbook rules are presumptively overbroad and violative.

  • “Taking unauthorized pictures or video on company property is prohibited”
  • “No employee shall use any recording device including but not limited to audio, video, or digital for the purpose of recording any Employer employee or Employer operation”
  • “Employees are prohibited from wearing cell phones, making personal calls or viewing or sending texts while on duty”

Keep in mind there are lawful restrictions on employee photographing and tape recording; however, the restrictions must be narrowly tailored to meet legitimate employer concerns such as proprietary manufacturing processes, proprietary training activity, or private customer contacts.

Restrictions on Leaving Work

Even in nonunion shops, a fundamental Section 7 right that all employees have is the right to go on strike.

Accordingly broad rules pertaining to leaving the employees’ work stations can be unlawful if employees would reasonably read them to prohibit protected strike actions and walk outs.

The following rules would be considered overbroad according to the General Counsel Memorandum:

  • “Failure to report to your scheduled shift for more than three consecutive days without prior authorization or walking off the job during a scheduled shift is prohibited”
  • “Walking off the job is prohibited”

There are certain employment settings where stricter rules can be set, most notably in patient care and in manufacturing situations where an orderly shutdown is required.

These five areas illustrate where the NLRB will examine handbook rules to determine if they can “reasonably be construed” to chill legitimate employee rights.  Other handbook rules, which will also be examined closely, are: no access rules, no solicitation/no distribution rules and the company’s “at will employment” and “union free” statements.

Because of the new standards, the Board will be examining every rule in employee handbooks to discern if it impermissibly interferes with protected employee rights.  An employer is well advised to review with its legal counsel every provision of its employee handbook and either eliminate or revise those provisions that might now be questionable under the new NLRB standards.

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