Vedder Thinking | Articles Employer Policies Still in the Crosshairs: NLRB General Counsel Issues Report on Employee Handbooks
On March 18, 2015, the General Counsel of the National Labor Relations Board (NLRB or the Board) issued a report summarizing recent Board decisions involving rules contained in employee handbooks. Serving as yet another reminder of the Board's ongoing, and some might say overzealous, efforts to protect employees from any infringement upon the rights afforded them by Section 7 of the National Labor Relations Act (namely, the right to engage in protected concerted activity with respect to the terms and conditions of their employment), this 30-page report addresses a number of topics such as confidentiality, employee conduct, third-party communications, rules restricting the use of company logos, copyrights and trademarks, and rules restricting photography and recording.
The report contains a number of instructive and, in some cases, alarming examples of handbook rules the Board has found to be both legal and illegal. Some key takeaways for employers, both unionized and non-union alike include:
- The Board continues to maintain that rules generally restricting the disclosure of employee information are unlawfully overbroad. Also, blanket bans on discussing employee contact information, without reference for how employees obtain that information, are also facially unlawful.
- The General Counsel reaffirmed that confidentiality rules that do not explicitly exempt employee reference to terms and conditions of employment can be unlawful. Specifically, rules that contain broad restrictions and do not clarify, in express language or contextually, that they do not restrict lawful Section 7 communications, violate the Act. According to the Report, any rule that directly bans discussion of "all nonpublic information" is considered unlawful because it would be reasonably understood to encompass discussions of nonpublic information protected under the Act such as discussions regarding wages, benefits, and other terms and conditions of employment. By contrast, employer rules can ban the unauthorized disclosure of business secrets of other confidential information.
- Employee conduct rules continue to face strict scrutiny by the Board. For example, rules that could be construed to ban protected criticism or protests regarding supervisors, managers, or the employer, in general, are unlawfully overbroad and, thus, viewed as unlawful by the Board. Moreover, broad and ambiguous language that would reasonably be construed to encompass protected spirited or heated discussions among employees regarding Union activity, the employer's labor policies, or the employe'’s treatment of employees, are unlawful. Rules banning communications with the media, government agencies or other third parties about protected topics as well as restrictions that employees would reasonably read to ban fair use of the employer's intellectual property in the course of protected activity, are viewed by the Board as unlawful.
- The use of social media and personal devices in the workplace remains a key target for NLRB enforcement. The Board is well aware of the prevalence of technology in today's workplace and certainly appears to be looking to remain relevant in the digital age. The NLRB deems rules that could be reasonably interpreted to prohibit the use of personal equipment—cameras, recording devices, personal electronic devices—as illegally overbroad because they could be seen as prohibiting legally protected uses such as documenting health and safety violations, or unfair labor practices.
The latest report from the NLRB General Counsel is yet another reminder that employer policies will continue to be viewed closely by the Board whenever the opportunity presents itself. The Board has issued a number of decisions that have left employers scratching their heads, struggling to find a way to address key operational concerns without committing an unfair labor practice. Vedder Price will continue to monitor Board decisions and provide updates when necessary. In the meantime, if you have any questions regarding the General Counsel's report or wish to discuss whether a specific policy will pass muster, please contact Neal I. Korval or any other Vedder Price attorney with whom you have worked.
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