On March 18, 2015, National Labor Relations Board (“NLRB”) General Counsel Richard Griffin issued a report concerning the employee handbook provisions under the National Labor Relations Act (“NLRA”). His agency investigates and remedies violations of the NLRA, a federal law that governs labor relations in many private companies.
Under Section 7 of the Act, employees have a federally protected right to engage in certain “concerted activities” for the purpose of obtaining union representation and/or collectively bargaining with their employees for wages, hours, terms and conditions of employment. Section 7 has been construed to permit criticisms by employees of management, dissemination of employee information and other acts employers have not traditionally tolerated. The NLRB has held that a work rule may violate the NLRA if the rule has a chilling effect on employee Section 7 activity. Mr. Giffin notes that the NLRA does not allow even well-intentioned rules that would inhibit employees from engaging in activities protected by the NLRA.
Mr. Griffin’s report offers his views on this evolving area of labor law, suggesting employers review their handbooks and other rules and ensure they are lawful. He presents recent NLRB case developments arising in the context of employee handbook rules which have been upheld or invalidated by the NLRB. He stated that most employee handbook violations occur when employees would reasonably construe the workplace rule’s language to prohibit Section 7 activity, whether or not the employer intended it.
Mr. Griffin suggests that some language that appears in many confidentiality agreements could violate the NLRA. For example, he stated the NLRB found the following rule to be unlawful because it restricts disclosure of employee information and therefore are unlawfully overbroad: “Do not discuss ‘customer or employee information’ outside of work, including ‘phone numbers [and] addresses.’” He stated that, in the above rule, in addition to the overbroad reference to “employee information,” the blanket ban on discussing employee contact information, without regard for how employees obtain that information, is facially unlawful.
Mr. Griffin also suggests that some variations of employee handbook language regulating employee conduct toward the company or supervisors also violates the NLRA. He stated the following rules have been found unlawfully overbroad since employees reasonably would construe them to ban protected criticism or protests regarding their supervisors, management, or the employer in general: “[B]e respectful to the company, other employees, customers, partners, and competitors.”
In addition, an employee’s right to criticize an employer’s labor policies and treatment of employees includes the right to do so in a public forum. Therefore, Mr. Griffin states the following rules were unlawfully overbroad because they reasonably would be read to require employees to refrain from criticizing the employer in public: “Refrain from any action that would harm persons or property or cause damage to the Company’s business or reputation.”
The General Counsel’s report cautions against including broad employee handbook prohibitions on use of cell phones/cameras, speaking disrespectfully to or about the employer or supervisors, use of company trademarks or logos, and disclosing confidential information. The report also makes clear that the NLRB considers context surrounding suspect provisions and how employees may reasonably interpret those provisions in deciding compliance issues. The full 30 page report may be found at: http://www.nlrb.gov/reports-guidance/general-counsel-memos.
Some suggest this report reflects the expansive view of Section 7. In any event, employers are wise to frequently review their employee handbooks for compliance with the NLRA and other laws. Policies should not be reviewed in isolation, though. The NLRB has made it clear that it will not read workplace rules in isolation. Even when a rule includes phrases or words that, alone, reasonably would be interpreted to ban protected criticism of the employer, if the context makes clear that only serious misconduct is banned, the rule will be found lawful.
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