A recent memo from the General Counsel for the National Labor Relations Board (NLRB) provides new guidelines regarding the language employers use in their company handbooks. Could your policies require review in order to stand up to scrutiny? BLR® Legal Editor Holly Jones, JD, has the advice you need in the following article.
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Creation of sound and legally compliant employee handbook policies has been something of a moving target in recent years due to the National Labor Relations Board’s (NLRB) continual review and interpretation of employee rights under Section 7 of the National Labor Relations Act (NLRA). In a March 18 memo (you can view it in its entirety here), NLRB General Counsel Richard F. Griffin, Jr. offered some valuable guidance on language employers may—but should not—consider including in their employee handbooks.
Let’s Review NLRA Section 7 Rights
First, recall that NLRA Section 7, which applies to both union and nonunion employers, guarantees employees the right not only to bargain collectively, organize, form, join, or assist labor organizations, but also the right to engage in “other concerted activities” for the purpose of collective bargaining or other mutual aid and protection. Section 8 of the Act then makes it an unfair labor practice for an employer to “interfere with, restrain, or coerce” employees in their exercise of these rights.
The NLRB interprets all parts of the Act broadly; as a result, the seemingly simple language has evolved to protect a variety of employee activity in and out of the workplace. For example, note that “concerted activities” aren’t just limited to union-organizing activities.
Rather, Section 7 grants employees the broad right to communicate about wages, hours, and any other terms and conditions of employment. This communication may occur among coworkers at the water cooler or with other third parties on social media.
When reviewing employer policies and practices for compliance with the Act, the NLRB determines whether a rule would have a “chilling effect” on employees’ Section 7 activity. In doing so, the Board determines whether employees would reasonably construe the policy to prohibit or restrict their activity.
But, again, the NLRB interprets these terms broadly, and many well-meaning, seemingly neutral policies have been found to have the potential to discourage an employee from participating in protected activity—even if the policy did not actually do so and even if the policy was not actually enforced. Often a rule is found unlawful simply for being ambiguous.
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Types of Policies to Consider for Review
The NLRB’s broad interpretation of Section 7 rights has placed all sorts of employer policies under scrutiny. Though workplace social media policies have been the most notably challenged, in the memo Griffin discusses eight other broad categories of workplace policies that may interfere with Section 7 rights. These policies include those that address or restrict:
- Confidentiality;
- Employee conduct toward the company and/or supervisors;
- Employee conduct toward other employees;
- Communication or interactions with third parties, including the media and government agencies;
- Protection of employer logos, copyrights, and trademarks;
- Photography and recording;
- When employees may leave work; and
- Conflicts of interest.
This list is certainly not exhaustive, as other policies such as at-will statements, arbitration policies, and English-only rules have also been at issue, and there is certainly potential for any workplace policy to run afoul of the broad Section 7 rights, but the list provides a concise review of the most problematic areas for employee handbooks.
For each of these types of rules, Griffin discusses NLRB precedents for rules that have—and have not—been found compliant. He explains the distinctions between the rules—distinctions that may turn on a single word or phrasing or their context within the handbook as a whole.
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Example Language: Workplace Conduct Rules
For example, workplace conduct rules can be a particularly tricky area, as employers certainly need to regulate employee behavior, but doing so within the limitations of Section 7 often requires judicious use of disclaimers, examples, and specificity.
In the memo, Griffin demonstrates that a significant problem with conduct rules is that they are often overbroad and can reasonably be interpreted to prohibit criticism of or protest against workplace practices or treatment. Rules that simply prohibit “disrespectful,” “negative,” “inappropriate,” or “rude” behavior will rarely stand unless significant clarification and context is given.
The Board found the following language to be unlawful because it was overly broad:
- “Be respectful to the company, other employees, customers, partners, and competitors.”
- “Do not make fun of, denigrate, or defame your coworkers, customers, franchisees, suppliers, the Company, or our competitors.”
- “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.”
- “Refrain from any action that would harm persons or property or cause damage to the Company’s business or reputation.”
- “[I]t is important that employees practice caution and discretion when posting content [on social media] that could affect [the Employer’s] business operation or reputation.”
- Do not make statements “that damage the company or the company’s reputation or that disrupt or damage the company’s business relationships.”
- “Never engage in behavior that would undermine the reputation of [the Employer], your peers or yourself.”
The memo goes on to provide examples of language that were found acceptable. It also further dissects an employee handbook that was found to be unlawful and describes the changes that were negotiated to bring that handbook into compliance with Section 7. We’ll present more on this tomorrow.
Jones’s analysis of the new NLRB memo continues in tomorrow’s Advisor, along with a great deal when you order the new HR Playbook, Employee Retention and Satisfaction: How to Attract, Retain, and Engage the Best Talent at Your Organization.