NLRB General Counsel Richard Griffin issued yesterday a Report Concerning Employer Rules, in a stated effort to provide guidance on the intersection of employer rules and the National Labor Relations Act (NLRA). The Report includes conclusions about common handbook policies that employers – both nonunion and unionized – may find surprising. Employers should pay careful attention to this new guidance.
As many employers recently have experienced, the NLRB is scrutinizing workplace policies and handbook statements and is demanding revocation or replacement of provisions that reasonably would be construed to interfere with rights protected by the NLRA, which apply whether employees are represented by a union or not.
Recent cases have shown that determining when the Board will view handbook language as interfering with protected employee rights, or as being "overbroad" for purposes of the Act, can be difficult to predict. From the standpoint of an agency charged with enforcing employees' rights to engage in zealous union organizing and advocacy, the Board's view of what language employees reasonably would construe as chilling protected rights can seem both surprising and idiosyncratic.
Acknowledging that the NLRB's test provides little guidance to employers in drafting and maintaining lawful rules under the Act, General Counsel Griffin's Report uses illustrations of policy language that the GC considers lawful, or unlawful, and seeks to provide some direction to employers about a few of the most frequently litigated handbook topics.
The Report also provides important direction to unions and employee advocates. In short, the Report provides a basic, relatively easy-to-use guide for charging parties to initiate Board action against employer handbooks. The Report illustrates the types of language in a handbook that will result in NLRB enforcement action. Employers should expect a great deal more action as a result.
For employers who have not recently reviewed their handbooks with an eye toward compliance with the Act, this Report is likely to be an eye-opener. Even for more experienced employers, there are surprises. The GC, time and again, applies a test to workplace rules that is based not on how employees would reasonably construe them, but on alleged ambiguity alone. The Report describes rules that are considered unlawful because they are not specific enough to prevent employees from concluding that they may prohibit protected activities. Consider some of the rules in the Report:
- A rule requiring employees to "be respectful of others and the Company" is unlawful because employees may construe it to ban protected protests.
- A ban on being "disrespectful" towards management will almost always be found to unlawfully chill protected criticism of the employer.
- A rule prohibiting "[d]efamatory, libelous, slanderous or discriminatory comments about [the Company], its customers and/or competitors" is unlawful because it could be read to prevent employees from criticizing the employer in public.
- A rule prohibiting "chronic resistance to proper work-related orders or discipline, even though not overt insubordination" is unlawful, because it could be understood as restricting "protected, concerted activity."
- A rule stating "don't pick fights" online is unlawful because employees could construe it to restrict "protected discussions with their coworkers."
- To put a finer point on the foregoing, a rule prohibiting making "insulting, embarrassing, hurtful or abusive comments about other employees online" is unlawful because "debate about unionization...is often contentious and controversial" and the rule could be viewed by employees as "limiting their ability to honestly discuss such subjects."
- A rule that "if something is not public information, you must not share it," is unlawful not because it references employment terms or employee information, but because it fails to clarify that discussion of such communications is permitted.
- A rule requiring employees not to use "other people's property," such as trademarks, without permission is unlawful because it could be read to ban "fair use of the employer's intellectual property in the course of protected concerted activity."
- A rule prohibiting "taking unauthorized pictures or video on company property" is unlawful because it could be viewed as prohibiting attempts to "document health and safety violations and other protected concerted activity" in the workplace.
- A conflict-of-interest rule that "employees may not engage in 'any action' that is 'not in the best interest of' the Employer" is unlawful because "it did not include any clarifying examples or context that would indicate that it did not apply to Section 7 activities.
Employers should expect Board scrutiny of workplace policies to increase following this Report. A meritorious charge alleging that a provision like one of the foregoing is being maintained can result in action by the GC to compel the employer to replace or remove that language and post and distribute Notices to all employees previously covered by the rule, informing them of their rights under the Act. Depending on the timing, such a charge can provide ammunition for a union's organizing campaign, or it can even result in an unsuccessful union election being voided and rerun. Employers are well-advised to carefully review their handbooks and assure that all of their workplace policies comply with the Board's current interpretations of the Act before such a charge ever is filed. Littler will publish a more comprehensive discussion of the GC's report soon.
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.