by Lisa Berg
Nonunion employers often believe they don’t have to worry about decisions from the National Labor Relations Board (NLRB). Well, think again! On March 15, 2015, NLRB General Counsel Richard F. Griffin issued a 30-page memo (Memorandum GC 15-04) that provides guidance on handbook policies the NLRB considers unlawful. The memo focuses on employer rules that may violate Section 7 of the National Labor Relations Act (NLRA) by prohibiting protected concerted activity. Section 7 of the NLRA gives employees the right to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
The memo states that even if a rule doesn’t explicitly prohibit protected concerted activity, it will still be found unlawful if (1) employees would reasonably construe the rule’s language to prohibit protected concerted activity (referred to as having a “chilling effect”), (2) the rule was promulgated in response to union organizing or other protected concerted activity or (3) the rule was actually applied to restrict the exercise of protected concerted rights.
Examples of lawful and unlawful rules
The memorandum is divided into two sections. The first section discusses the legality of work rules frequently before the NLRB, including rules pertaining to confidentiality, professionalism, harassment, trademarks, photography/recording, and media. The discussion contains examples of policies the General Counsel found lawful and unlawful and provides his rationale. The second part offers guidance in the form of “model” policies that the NLRB presumably would find lawful. Here are some of the examples of acceptable and unacceptable policies from the memo.
Confidentiality
- Unlawful: Do not discuss customer or employee information outside work, including phone numbers and addresses.
- Unlawful: Discuss work matters only with other employees who have a specific business reason to know or have access to such information. Do not discuss work matters in public places.
- Lawful: Do not disclose confidential financial data or other nonpublic proprietary company information. Do not share confidential information regarding business partners, vendors, or customers.
Conduct toward employer
- Unlawful: Defamatory, libelous, slanderous, or discriminatory comments about the company, its customers and/or competitors, employees, or management will not be tolerated.
- Unlawful: Employees may not engage in disrespectful conduct or insubordination, including, but not limited to, refusing to follow orders from a supervisor or a designated representative.
- Lawful: Each employee is expected to work in a cooperative manner with management/supervisors, coworkers, customers, and vendors.
- Lawful: Employees will not be discourteous or disrespectful to a customer or any member of the public in the course and scope of company business.
Employee conduct
- Unlawful: Do not send unwanted, offensive, or inappropriate e- mails.
- Lawful: Threatening, intimidating, coercing, or otherwise interfering with the job performance of fellow employees or visitors is prohibited.
Logos, copyrights, trademarks
- Unlawful: Do not use any company logos, trademarks, graphics, or advertising materials on social media.
- Lawful: Respect all copyright and other intellectual property laws. For the employer’s protection as well as your own, it is critical that you show proper respect for the laws governing copyrights, fair use of copyrighted material owned by others, trademarks, and other intellectual property, including the employer’s own copyrights, trademarks, and brands.
Restrictions on leaving work
- Unlawful: Walking off the job is prohibited.
- Lawful: Walking off a shift, failing to report for a scheduled shift, and leaving early without supervisor permission are grounds for immediate termination.
Employer takeaways
Trying to understand why the General Counsel found some rules unlawful and others lawful is challenging, especially when the policy language is so similar. If you find your policies might be deficient, consult with qualified labor counsel to determine whether they are compliant or need to be 
revised. Although the memorandum doesn’t have the force of law, it provides a strong indication of the likely position the NLRB will take if an unfair labor practice charge challenging your handbook policies is filed.
Lisa Berg is an employment lawyer and shareholder at the Miami office of Stearns Weaver Miller. She may be contacted at lberg@stearnsweaver.com.