NLRB’s General Counsel Issues Guidance on Handbook Policies

Nicholas Fortuna, March 27, 2015

On March 18, the National Labor Relations Board’s (NLRB) general counsel issued a report offering guidance to employers and labor law practitioners on how to draft handbook rules that will not be deemed unlawful under Section 7 of the National Labor Relations Act (NLRA). The NLRB has been aggressively reviewing employer handbook policies on a variety of topics, including confidentiality, social media, use of employer email systems for non-work related solicitations, and employee conduct rules. What has emerged from these cases is a pattern wherein the NLRB finds unlawful seemingly innocuous, business sensible policies, such as prohibiting the unauthorized distribution of confidential employer information because, in its view, those policies could be interpreted to limit employees’ right to engage in certain types of concerted activity deemed protected by Section 7 of the NLRA.

The 30 page report from General Counsel Richard Griffin examines employer policies across a broad spectrum and highlights policies found to be unlawful and those deemed to be acceptable under law. The report also offers guidance in the form of model policies addressing social media, confidentiality, conflicts of interest, cell phone use, and other areas that presumably would be deemed lawful by the NLRB. Certainly, employers following the recommendations of the general counsel would not be prosecuted by the general counsel.

Some examples of the issues handled in the report are as follows:

Confidentiality – Broad prohibitions on disclosing confidential information are lawful so long as they do not relate to information regarding employees or anything that may be considered a term or condition of employment.

Employee Conduct Towards the Company and Supervisors – The report provides that employees have broad protection to criticize or protest their employer’s labor policies or treatment of employees even if that criticism is false or considered defamatory. The protection does not to cover acts of insubordination or what the Board determines is maliciously false.

Conduct Toward Fellow Employees – Statements, arguments, debates about unions, management, and the terms and conditions of employment are protected even if they are intemperate, abusive and inaccurate. Despite the fact employers have an interest in maintaining a harassment-free workplace, anti-harassment rules cannot prohibit vigorous debate or intemperate comments regarding Section 7 rights.

Interaction with Third Parties – Employers cannot restrict employees from communicating with the media about their terms and conditions of employment. But the employer can restrict who is permitted to speak on behalf of the company.

Use of Company Logos, Copyrights and Trademarks – Employees are permitted to use the company’s name, logo, etc. on picket signs, leaflets and other protected materials.

Photography and Recording – Employees have the right to take photographs and make recordings in furtherance of their protected concerted activities, including the right to use personal devices to take such photographs or make such recordings.

Leaving Work – A fundamental right under Section 7 is the right to go on strike, therefore rules that regulate when an employee can leave work are unlawful if they forbid protected strike actions or walkouts.

In most of the situations addressed in the report, the employer’s interest will be trumped by an employees’ Section 7 rights under the NLRA. In crafting a lawful handbook policy requires that the employer’s should be mindful of those rights in creating policies furthering the interests of the employer. The NLRB will continue to be aggressive in reviewing employer handbook policies and employers need to be careful on what they restrict their employees from doing or saying. The report is useful for employers and practitioners because it provides a summary of the general counsel’s views on a wide range of matters and examples of language likely to be found lawful.