Over the last several years, the National Labor Relations Board has aggressively reviewed employer handbook policies for any hint that a policy might chill an employee’s right to engage in “protected concerted activity” under Section 7 of the National Labor Relations Act (“NLRA”) – commonly known as “Section 7 rights.”
Seeking to protect employees’ Section 7 rights, the NLRB has scrutinized standard handbook policies on confidentiality, employee conduct, third-party communication, and even the use of company logos, and found such policies drafted in a way that infringes on Section 7 rights. This has resulted in numerous NLRB decisions finding many common handbook policies unlawfully overbroad. And, since the NLRA applies to union and non-union employers, the policies of both have been the subject to the NLRB’s scrutiny.
In an effort to give employers some clearer guidance, on March 18, 2015, NLRB General Counsel Richard F. Griffin, Jr. issued Memorandum GC 15-04 (“Guidance”), which examines various types of employment policies and identifies those that the NLRB finds overbroad and those that it finds acceptable and attempts to explain that reasoning. Let's look at several of the policies analyzed by the NLRB:
Confidentiality policies have been a favorite target of NLRB scrutiny. According to the NLRB, confidentiality policies that seem to prohibit employees from discussing terms and conditions of employment with other employees and non-employees, such as union representatives, are overbroad and unlawful. The Guidance does seem to give a concession to employers by recognizing that confidentiality restrictions 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.”
So what type of confidentiality restriction does the NLRB consider unlawful? Here's one example:
Do not discuss “customer or employee information” outside work, including “phone numbers and addresses.
According to the NLRB, the policy above is overbroad because of its blanket ban on discussing employee information. In contrast, the NLRB concluded that the following confidentiality rules were lawful:
No unauthorized disclosure of “business secrets or other confidential information.
Do not disclose confidential financial data, or other non-public proprietary company information. Do not share confidential information regarding business partners, vendors, or customers.
The NLRB stated that the rules above were permissible because they did not reference information regarding employees or employee terms or conditions of employment. Further, although the rules use the general term “confidential,” they do not define it in an overbroad manner.
Employee Conduct Policies
Policies that restrict employees’ ability to criticize or even disparage supervisors, employer policies, or even other employees are another frequent focus of NLRB scrutiny. The Guidance notes that such policies are often overbroad when they appear to limit “concerted criticism” by prohibiting employees from engaging in “disrespectful, negative,” “inappropriate” or “rude” “conduct toward the employer or management, absent sufficient clarification or context.”
Here are two more examples of the NLRB’s policy analysis:
Each employee is expected to work in a cooperative manner with management/supervision, coworkers, customers and vendors.
This first policy above is considered lawful by the NLRB's analysis.
Be respectful of others and the Company.
The second policy above is considered unlawful by the NLRB.
What’s the difference? The NLRB stated that employees could reasonably interpret the first rule as stating the expectation that employees work together in an atmosphere of civility, and according to the NLRB “that is not prohibiting Section 7 activity.” How is the second rule any different? The NLRB Guidance notes that the second policy is broadly drafted and, therefore, employees could reasonably understand it to prohibit “protected criticism or protests.”
Other Areas of Policy Guidance
The Guidance also analyzes the lawfulness of policies restricting employee contact with and communications to the media relating to their employment, and policies related to employees’ use of logos, copyrights, and trademarks. In addition, the Guidance discusses policies that restrict employees from taking photographs or making recordings in the workplace. The Guidance notes that “[e]mployees have 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 make recordings.”
The NLRB finds that such policies are overbroad “where they would reasonably be read to prohibit the taking of pictures or recordings on non-work time.”
The intention of the NLRB Guidance is to provide employers with some clarity on the Board’s aggressive enforcement effort against handbook policies. However, it is questionable how helpful the Board’s razor thin distinctions between permissible and impermissible policies will really be for employers. The following takeaways from the NLRB's Guidance are useful in crafting legally permissible policies:
- Explain why the rule is important. For example, a confidentiality policy that states its purpose in protecting company financial data is more likely considered legal than a policy that just makes everything “confidential.”
- Put the policies in context. If employees must be courteous because customers are present, make that clear in the policy.
- Review policies based on the Guidance and modify where they are seemingly overbroad.
The ultimate takeaway is that policy drafting requires not only common sense, but precision and context. The NLRB Memorandum is located on the NLRB website at Memorandum GC 15-04.