NLRB General Counsel sets sights on common employer policies

May 2015
Utah Employment Law Letter

Creation of sound and legally compliant employee handbook policies has been something of a moving target in recent years because of the National Labor Relations Board’s (NLRB) continual review and interpretation of employee rights under Section 7 of the National Labor Relations Act (NLRA). Section 7 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.”
In a recent 30-page memo, NLRB General Counsel Richard F. Griffin Jr. offers some valuable guidance on language employers may—and should not—consider including in employee handbooks.

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:
(1) Confidentiality;
(2) Employee conduct toward the company and/or supervisors;
(3) Employee conduct toward other employees;
(4) Communication or interactions with third parties, including the media and government agencies;
(5) Protection of employer logos, copyrights, and trademarks;
(6) Photography and recording;
(7) When employees may leave work; and
(8) Conflicts of interest.

For each of these types of rules, Griffin discusses NLRB precedents for rules that have and have not been found to be compliant. He then explains the distinctions between the rules—distinctions that may turn on a single word or phrase or the rules’ context within the handbook as a whole.

Example language: workplace conduct rules

For example, workplace conduct rules can be a particularly tricky area because 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’re often overly broad 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 are 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.”
  • “It 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.”

The memo then provides examples of language that was found acceptable. For example, the following language was upheld because the policies required employees to be respectful to customers, competitors, and the like but did not mention the company or its management in the requirements. Thus, an employee wouldn’t reasonably believe these rules prohibit criticism of the company or its policies:

  • No “rudeness or unprofessional behavior toward a customer or anyone in contact with” the company.
  • “Employees will not be discourteous or disrespectful to a customer or any member of the public while in the course and scope of [company] business.”

Similarly, rules that require employees to cooperate with each other and/or the employer in the performance of their work have been upheld as long as employees could reasonably understand that the rules’ efforts to promote a civil work environment don’t implicate Section 7 rights. For example: “Each employee is expected to work in a cooperative manner with management/supervision, coworkers, customers, and vendors.”

The memo provides similar discussions and context focused examples of lawful and unlawful language for each of the eight broad policy areas noted above.

Bottom Line

As the memo notes throughout its examples, do keep in mind that context matters—that is, the NLRB reviews employee handbooks and workplace policies in context of their entirety and won’t isolate a sentence or paragraph for review. Therefore, language that would be impermissible in isolation could become compliant in the handbook as a whole based on its context. This also means that the examples provided in the memo should
be considered only guidance rather than clear-cut do’s or don’ts.

Example revisions to a corporate handbook

The General Counsel’s memo also dissects an employee handbook that was found to be unlawful—specifically, the one used by Wendy’s
International—and describes the changes that were negotiated to bring it into compliance with Section 7.

For example, the Wendy’s handbook included a social media policy
that required employees to:
Refrain from commenting on the company’s business, financial performance, strategies, clients, policies, employees or competitors in any social media, without the advance approval of your supervisor, Human Resources and Communications Departments.

This policy was found to be problematic and overly broad because it went beyond preventing employees from speaking on behalf of or in the name of Wendy’s. Rather, it could be interpreted to prohibit an employee from commenting about any of the company’s business, policies, or employees without prior authorization, particularly when the comments might reflect negatively on the company.

The policy was amended to include more limited and specific language,
such as:

  • “Do not comment on trade secrets and proprietary Company information (business, financial and marketing strategies) without the advance approval of your supervisor, Human Resources and Communications Departments.”
  • “Do not make negative comments about our customers in any social media.”
  •  “Use of social media on Company equipment during working time is permitted, if your use is for legitimate, preapproved Company business. Please discuss the nature of your anticipated business use and the content of your message with your supervisor and Human Resources. Obtain their approval prior to such use.”