On March 18, 2015, the General Counsel of the National Labor Relations Board (NLRB) issued a report (General Counsel Memorandum GC 15-04) summarizing recent NLRB enforcement action regarding many common employment policies. The report is relevant to nearly all private employers, regardless of whether they have union represented employees. It is troubling because it finds that many seemingly innocuous, sensible employer handbook provisions and policies are unlawful because they could potentially be interpreted to chill employees’ rights to engage in concerted protected activity under the National Labor Relations Act.
The 30-page Report discusses handbook provisions in the following areas:
- Employee conduct toward the Company and supervisors;
- Employee conduct toward fellow employees;
- Employee interactions with third parties;
- Use of company logos, copyrights, and trademarks;
- Photography and recordings at work;
- Rules restricting employees from leaving work;
- Conflict of interest.
The Report contains examples of rules in each of the categories that were found to be unlawful, and examples of those that were lawful. Some of the examples of unlawful rules include the following:
- “Do not discuss customer or employee information outside of work, including phone numbers and addresses.”
- “Be respectful of others and the Company.”
- “No defamatory, libelous, slanderous or discriminatory comments about the Company, its customers and/ or competitors, its employees, or management.”
- “Do not make insulting, embarrassing, hurtful or abusive comments about other company employees online, and avoid the use of offensive, derogatory, or prejudicial comments.”
- “Employees are not authorized to speak to any representatives of the print and/ or electronic media about company matters unless designated to do so by HR, and must refer all media inquiries to the company media hotline.”
- “Do not use any Company logos, trademarks, graphics, or advertising materials in social media.”
- Rules prohibiting wearing cell phones, making personal calls, or viewing or sending text messages “while on duty.”
The report is useful because it provides a single summary of the General Counsel’s views on this wide range of polices, as well as examples of language that is likely to be found lawful in future proceedings. Employers are urged to review their handbooks and workplace policies and assess whether any policies are potentially subject to scrutiny by the NLRB. In many instances, a few relatively small wording changes may be enough to render the policy lawful.