United States: NLRB General Counsel Issues Report Discussing Unlawful Personnel Policies Under The National Labor Relations Act

In recent years, the National Labor Relations Board ("NLRB") has increasingly turned its attention to employee handbooks, closely scrutinizing both union and non-union employers' personnel policies for potential violations of Section 7 of the National Labor Relations Act (the "Act"), which gives employees a right to form or join a union and to engage in concerted activities regarding wages, hours, and working conditions. As a result of this increased scrutiny, some of the most common employment policies found in company handbooks have been deemed unlawful by the NLRB.

On March 18, 2015, the General Counsel of the NLRB issued a 30-page report providing an extensive review of recent cases addressing various employee handbook policies. General Counsel Richard Griffin explained that he was issuing the report "to offer guidance on my views of this evolving area of labor law, with the hope that it will help employers to review their handbooks and other rules, and conform them, if necessary, to ensure that they are lawful." The General Counsel pointed out that a workplace rule or policy will ordinarily violate the Act if it expressly prohibits employees from engaging in conduct protected by Section 7, if it is applied to protected Section 7 activity, if it is adopted in response to protected Section 7 activity, or if employees would reasonably construe a facially neutral rule or policy to prohibit protected Section 7 activity.

The report is divided into two parts. The first part provides illustrative examples of policies that the NLRB has found to be unlawful followed by similar policies that the NLRB has found to be lawful. The second part of the report discusses handbook rules examined in connection with an unfair labor practice charge against a nationwide restaurant company, setting forth the policies that were deemed unlawful, along with the revised versions of those policies approved as lawful by the NLRB's General Counsel and adopted by the company pursuant to a settlement of the unfair labor practice charge.

The report examines common handbook policies frequently challenged before the NLRB, including confidentiality policies, professionalism policies, anti-harassment policies, trademark-use policies, photography/recording policies, and media-contact policies. Below are a few examples of the policies that the NLRB has found to be unlawful under the Act, as set forth in the General Counsel's report.

"Never publish or disclose [the Employer's] or another's confidential or other proprietary information. Never publish or report on conversations that are meant to be private or internal to [the Employer]."
Although the NLRB recognizes that an employer has a right to protect its trade secrets and confidential information, it found that this policy's broad reference to "another's" confidential information would reasonably be construed by employees to include information about other employees' wages and terms and conditions of employment – something employers generally cannot lawfully prohibit employees from discussing or disclosing.

"Be respectful of others and the Company"
This policy was found to be unlawful because employees reasonably would construe this language to ban protected criticism regarding their supervisors, management or the employer in the context of criticizing the employer's labor policies or treatment of employees.

Employees may not make "insulting, embarrassing, hurtful or abusive comments about other company employees online."
The NLRB determined that this policy was unlawful because debates about unionization and other protected concerted activity are often contentious and controversial and employees would reasonably construe this policy as restricting their right to engage in such debates as well as limiting protected criticism of supervisors and managers, since they are also "company employees."

Employees are prohibited from sending "unwanted, offensive, or inappropriate e-mails."
The NLRB found that this policy was unlawful because it was overbroad and vague and could encompass communications protected by the Act.

"Associates are not authorized to answer questions from the news media... When approached for information, you should refer the person to the employer's Media Relations Department."
The NLRB recognizes that an employer may lawfully control who may make official statements on behalf of the employer. However, this policy was found to be unlawful because employees have a Section 7 right to speak to the media on their own behalf regarding wages, hours, and working conditions, and the policy's blanket restrictions on responses to media inquiries would be reasonably construed by employees to apply to all media contacts, not just those seeking an official employer response.

Employees must "respect copyrights and similar laws. Do not use any copyrighted or otherwise protected information or property without the owner's written consent."
The NLRB found this policy to be unlawful because employees would reasonably construe its broad prohibition of the use of copyrighted or other protected information to prohibit Section-7-protected communications involving, for example, copyrighted handbooks or use of trademarks/names in a wage comparison.

Policy prohibits employees from "[t]aking unauthorized pictures or video on company property."
The Board held that this policy was unlawful because employees would reasonably construe this rule to prohibit attempts to document health and safety violations and other protected concerted activity.

Practical Implications

Employers should be aware that they can be found to be in violation of the Act merely by maintaining a workplace rule or policy that can reasonably be construed as restricting the exercise of Section 7 rights, even if the rule or policy has never been enforced against an employee who was exercising those rights. As the General Counsel's report makes clear, the difference between a lawful and an unlawful workplace rule can often turn on the presence of even a single word, the context in which the rule appears, or the inclusion of clarifying language or examples. While the report provides helpful guidance to employers in drafting their policies in a way that will minimize the risk of unfair labor practice charges, it also provides an effective guide for unions and employees to use in identifying workplace rules that may run afoul of the Act and provide a basis for an unfair labor practice charge against an employer. Thus, both unionized and non-unionized employers should carefully review their employee handbooks and consult with counsel to ensure that their personnel policies are lawful in light of the NLRB's recent decisions and guidance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Russell A. Jones
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions