On March 18, 2015, Richard F. Griffin, General Counsel for the National Labor Relations Board (“NLRB”), issued a Memorandum providing guidance on handbook rules that the NLRB considers to be unlawful. The Memorandum focuses on employee rules that may violate Section 7 of the National Labor Relations Act (“NLRA”) by prohibiting protected activity. Section 7 of the NLRA gives 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.”
The Memorandum states that “(e)ven if a rule does not explicitly prohibit [protected concerted] activity, however, it will still be found unlawful if 1) employees would reasonably construe the rule’s language to prohibit [protected concerted] activity; 2) the rule was promulgated in response to union or other [protected concerted] activity; or 3) the rule was actually applied to restrict the exercise of [protected concerted] rights.” The Memorandum then outlines several categories of handbook rules that the NLRB often finds to be unlawful.
Employer Handbook Rules Regarding Confidentiality
Employees have a right to discuss wages, hours, and other terms and conditions of employment with fellow employees and certain fellow nonemployees. The Memorandum states that “a confidentiality rule that broadly encompasses ’employee’ or ‘personnel’ information, without further clarification, will reasonably be construed by employees to restrict [protected concerted] communications.” The Memorandum provides several examples of unlawful rules. Several of the examples even use language that only prohibited disclosing information that violated the law or company policy. For example: “You must not disclose proprietary or confidential information about [the Employer, or] other associates (if the proprietary or confidential information relating to [the Employer’s associates was obtained in violation of law or lawful Company policy).” This handbook rule was found to be “unlawfully overbroad because a reasonable employee would not understand how the employer determines what constitutes a ‘lawful Company policy.'” As such, employers must be very cautious in implementing confidentiality rules to ensure that they do not restrict protected activities.
Employer Handbook Rules Regarding Employee Conduct towards the Company and Supervisors
Employees also have the “right to criticize or protest their employer’s labor practices or treatment of employees.” Rules that prohibit “disrespectful,” “negative,” “inappropriate,” or “rude” conduct towards the employer may be considered unlawful under NLRA. Some of the examples of handbook rules found to be unlawful are:
* “[B]e 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”
* “No [d]efamatory, libelous, slanderous or discriminatory comments about [the Company], its customers and/or competitors, its employees or management”
Any handbook rules regarding employee conduct towards the company must contain sufficient context or examples to indicate that they are only aimed at unprotected activities.
Employer Handbook Rules Regulating Conduct towards Fellow Employees
In addition to the right to discuss the terms and conditions of employment, employees have the right to “argue and debate with each other about unions, management, and their terms and conditions of employment.” They have the right to do so even if the discussions become contentious and lead to “intemperate, abusive and inaccurate statements.” See Linn v. United Plant Guards, 383 U.S. 53 (1966). Rules that restrict discussions between employees are unlawful to the extent they are found to restrict protected activities. The Memorandum provides several examples of rules that the NLRB has found to be overbroad, including:
* “[D]on’t pick fights” online
* Do not make “insulting, embarrassing, hurtful or abusive comments about other company employees online,” and “avoid the use of offensive, derogatory, or prejudicial comments”
* “[S]how proper consideration for others’ privacy and for topics that may be considered objectionable or inflammatory, such as politics and religion”
* Do not send “unwanted, offensive, or inappropriate” e-mails
* Material that is fraudulent, harassing, embarrassing, sexually explicit, profane, obscene, intimidating, defamatory, or otherwise unlawful or inappropriate may not be sent by e-mail”
Handbook rules that restrict conduct between co-workers should be narrowly prepared not to restrict otherwise protected activity.
These are just a handful of the legal issues relating to handbook policies that the Memorandum addresses. You can read the complete NRLB Memorandum at the following link: https://apps.nlrb.gov/link/document.aspx/09031d4581b37135. We strongly recommend that employers carefully review their employee handbook with qualified legal counsel.