Over the past few years, much has been written about the National Labor Relations Board’s (the “Board”) drive to scrutinize the provisions of employee handbooks. The Board’s aggressive strategy rests on its holding in Lafayette Park Hotel, wherein the Board stated “[w]here the rules are likely to have a chilling effect on Section 7 rights, the Board may conclude that their maintenance is an unfair labor practice, even absent evidence of enforcement.” 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). Thus, if the Board finds that an employee could “reasonably construe” an otherwise innocuous work rule in such a way as to limit that employee in pursuit of his or her rights under Section 7, the rule will be declared unlawful.
New General Counsel Memorandum
On March 18, 2015, the Board’s Office of the General Counsel released a Memorandum providing employers guidance as to what the Board deems lawful and unlawful handbook language. The Memorandum reflects the Board’s continued interest in policies addressing employee use of social media, workplace conduct and decorum toward managers and co-workers, and employee confidentiality obligations. However, the Memorandum also finds unlawful a number of novel policy areas that have not previously received such close scrutiny, including media and other outside communications; use of employer logos, copyrights or trademarks; restrictions on personal electronic devises, photography and recordings; restrictions on employee rights to leave work; conflict-of-interest policies; and handbook disclosure policies. Some examples of Employer policy language deemed unlawful by the Board, includes:
- Media Relations/Communications – “Employees are not authorized to speak to any representatives of the print and/or electronic media about company matters unless designated to do so by HR, and must refer all media inquiries to the company media hotline.”
The Board explained that the language is unlawful because employees “would reasonably construe the phrase ‘company matters’ to encompass employment concerns and labor relations, and there was no limiting language or other context in the rule to clarify that the rule applied only to those speaking as official company representatives.”
- Company Name and Logo Use Restrictions – “Company logos and trademarks may not be used without written consent . . . .”
The Board explained that the language is unlawful because it contains broad restrictions that employees would reasonably read to ban fair use of the employer’s intellectual property in the course of protected concerted activity. By “fair use” the Board means referencing company names, logos, etc. on picket signs, leaflets or other “non-commercial” communications.
- Restriction on Electronic Media – “No employee shall use any recording device including but not limited to, audio, video, or digital for the purpose of recording any [Employer] employee or [Employer] operation . . . .”
The Board found this rule unlawful because employees would reasonably construe it to preclude, among other things, documentation of unfair labor practices, which it considers an essential part of the recognized right under Section 7 to utilize the Board’s processes.
- Restriction on Electronic Media – “Prohibition from wearing cell phones, making personal calls or viewing or sending texts ‘while on duty.’”
The Board found this rule unlawful because it considers the limitation on personal recording devices to time “on duty” to be insufficient. Specifically, the Board asserts that employees “reasonably” would understand “on duty” to include breaks and meals during their shifts, as opposed to their actual work time.
- No-Call/No-Show/Job Abandonment Provision – “Failure to report to your scheduled shift for more than three consecutive days without prior authorization or ‘walking off the job’ during a scheduled shift is prohibited.”
The Board concluded that this provision could be understood by employees to unlawfully limit the employees’ protected right to engage in lawful strikes and walkouts.
- Conflict of Interest Policy – “With this in mind, you should recognize your responsibility to avoid any conflict between your personal interests and those of the Company. A conflict of interest occurs when our personal interests interfere—or appear to interfere—with our ability to make sound business decisions on behalf of [the Company].”
Here, the Board inferred that an employee may believe his or her own interests (e.g., to form or join a union, or to discuss low wages, etc.) may be inconsistent with the company’s interests, and, therefore, found the rule unlawful because it was phrased broadly and did not include any clarifying examples or context that would indicate that it did not apply to Section 7 activities.
- Handbook Disclosure Provision – “No part of this handbook may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or information storage and retrieval system or otherwise, for any purpose without the express written permission of [management].”
The Board concluded that this provision was unlawful because it prohibited disclosure of the Employer’s handbook, which contains policies relating to the terms and conditions of employment, to third parties such as union representatives or the Board.
In summary, it is clear from the Memorandum that the Board will scrutinize every word of every policy document, handbook provision, form document, disciplinary communication, or any other written communication between an employer and its employees in an effort to uncover language that may unlawfully restrict employee Section 7 rights.
Implications of Maintaining Unlawful Policies
If an employer’s policy is found to be unlawful, the Board will typically require that the employer change the problematic handbook or policy and post a notice to employees explaining their rights. Additionally, an employer who terminates an employee based upon overly-broad policies may be required to reinstate the employee with backpay. See Hispanics United of Buffalo, Inc., 359 NLRB No. 37 (Dec. 14, 2012).
The stakes are even higher for employers facing a union election. Imagine that you’ve worked hard to prepare your organization to respond to an ambush election. Even better, imagine that you’ve won that election. Now imagine that the union files objections asserting that one or more of your company policies are unlawfully overbroad or restrictive. After review, the Board agrees with the union and throws out the election results. That’s exactly what happened in Jurys Boston Hotel, 356 NLRB No. 114 (2011), where the Board overturned the “no” vote of a majority of employees who voted because a handbook policy that had never been enforced or even at issue in the campaign was deemed unlawful by the Board.
Employer’s should take the time necessary to review and revise policy documents, handbooks, etc. to reduce the risk that such documents contain language the Board would deem unlawful. In reviewing policies, employers should be mindful of several major themes that consistently appear in Board decisions and guidance regarding the elements of lawful and unlawful policies:
- Understand Protected Concerted Rights: It will help you immeasurably to read your handbook like an investigator from the Board would by keeping the idea of “protected concerted activity” top of mind. Most policy provisions can be revised to avoid the pitfalls described above, if you understand the rights conferred by Section 7.
- Provide Examples of Prohibited Conduct: Providing examples of plainly egregious unprotected behavior to provide context and eliminate ambiguity about whether the policy could be interpreted to limit the exercise of Section 7 rights.
- Define Confidential Information: Defining what types of confidential information should not be disclosed – i.e., business financial or trade secret information, or customer financial information, and not information about employees.
- Include Limiting Language: While the Board has made clear that an otherwise unlawful policy cannot be cured by a general “disclaimer,” employers should consider including limiting language in any potentially offending policy or provision itself.