Rules in the Workplace: So You Think You Know the NLRB
By David H. Ganz, Partner, Gonzalez Saggio & Harlan LLP — New Jersey/New York City Regional Offices
Which, if any, of the following employer rules does the NLRB consider unlawful?
1. Misuse or unauthorized disclosure of confidential information not otherwise available to persons or firms outside the company is cause for disciplinary action, including termination.
2. If something is not public information, you must not share it.
3. Be respectful of others and the Company.
4. Do not make fun of, denigrate, or defame your co-workers, customers, franchisees, suppliers, the Company, or our competitors.
5. Do not make statements that damage the company or the company’s reputation or that disrupt or damage the company’s business relationships.
6. Each employee is expected to work in a cooperative manner with management/supervision, coworkers, customers, and vendors.
7. Do not make insulting, embarrassing, hurtful or abusive comments about other company employees online, and avoid the use of offensive, derogatory, or prejudicial comments.
8. 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.
9. Do not use any Company logos, trademarks, graphics, or advertising materials in social media.
10. Taking unauthorized pictures or video on company property is prohibited.
11. Employees may not engage in any action that is not in the best interests of the company.
Answers located at the end of the article.
On March 18, 2015, the NLRB’s General Counsel issued a report that provides guidance on which employee handbook rules, in the NLRB’s view, do and do not comply with the National Labor Relations Act. All employers may wish to take heed of the Report, because infringing on an employee’s right to engage in protected activity under the NLRA (sometimes called Section 7 activity) does not require a unionized workforce. The Report offers useful insights on a number of topics that are often found in employee handbooks, such as confidentiality, conduct towards supervisors, co-workers, and third parties, use of company logos and intellectual property, use of recording devices, and conflicts of interest.
Confidentiality
According to the Report, a confidentiality policy that specifically prohibits employee discussions of the terms and conditions of employment, such as wages, hours, or workplace complaints violates the NLRA. The same is true for a policy that employees would reasonably understand to prohibit such discussions. By contrast, a policy that prohibits the disclosure of “confidential” information, however broadly defined, is lawful so long as it does not reference information regarding employees or anything that would reasonably be considered a term or condition of employment. Context is everything, as an otherwise unlawful confidentiality rule will be found lawful if, under the circumstances, employees would not reasonably understand it to prohibit Section 7 activity. The Report provides the following example: a prohibition on disclosure of all “information acquired in the course of one’s work,” when read in isolation, would reasonably be read to include employee wages and benefits as confidential information. However, because this provision appeared among other rules relating to conflicts of interest and compliance with securities regulations and state and federal laws, the NLRB determined that employees would reasonably understand the information to encompass credit cards, contracts, and trade secrets, and not Section 7 activity.
Rules Regarding Employee Conduct Toward the Company and Supervisors
The Report recognizes that employees have the Section 7 right to criticize or protest their employer’s labor policies or treatment of employees. Thus, rules that can reasonably be read to prohibit protected concerted criticism of the employer will be found unlawfully overbroad. By way of example, a rule prohibiting employees from engaging in “disrespectful,” “negative,” “inappropriate,” or “rude” conduct towards the employer or management will usually be unlawful absent sufficient clarification or context. Similarly, criticism of the employer will not lose the protection of the NLRA simply because that criticism is false or defamatory; rather, to be found lawful, the rule banning false statements must specify that only maliciously false statements are prohibited.
The Report also recognizes that a rule requiring employees to be respectful and professional to co-workers, clients, or competitors, but not the employer or management, will generally be found lawful because, according to the NLRB, employers have a legitimate interest in having employees act professionally and courteously with co-workers, customers, employer business partners, and other third parties. Thus, the NLRB has found lawful a rule that provides there will be no “rudeness or unprofessional behavior towards a customer, or anyone in contact with” the company. Similarly, a rule prohibiting conduct that amounts to insubordination would not, in the NLRB’s view, be construed as infringing on protected activities, nor would a rule that employees would reasonably understand to prohibit insubordinate conduct. In addition, a rule requiring employees to cooperate with each other and the employer in the performance of their work generally does not, according to the NLRB, implicate Section 7 rights.
Although an employee’s right to criticize the employer’s labor policies and treatment of employees includes the right to do so in a public forum, the Report also acknowledges that the NLRA does not protect employee conduct aimed at disparaging an employer’s product.
Rules Regarding Employee Conduct Toward Co-Workers
The Report provides that employees have the right under the Act to, among other things, argue and debate with each other about unions, management and their terms and conditions of employment. As a result, a rule that bans “negative” or “inappropriate” discussions among its employees, without further clarification, is generally found to be prohibiting protected discussions and interactions. In addition, a rule declaring that employees could not make “insulting, embarrassing, hurtful or abusive comments about other company employees online” and should “avoid the use of offensive derogatory, or prejudicial comments” was found by the NLRB to be unlawfully overbroad because employees would reasonably read such a rule to limit their ability to (i) honestly discuss topics protected by Section 7 and (ii) criticize supervisors and managers, since they too are “company employees.”
The Report acknowledges that employers can adopt anti-harassment rules, so long as they are not so broad that employees would reasonably read them as prohibiting vigorous debate or intemperate comments regarding Section 7 protected subjects. The NLRB has found lawful rules prohibiting “inappropriate gestures, including visual staring,” “harassment of employees, patients or facility visitors,” and logos or graphics worn by employees that “reflect any form of violent, discriminatory, abusive, offensive, demeaning, or otherwise unprofessional message.”
Rules Regarding Employee Interactions with Third Parties
The Report makes clear that handbook rules that reasonably would be read to restrict an employee’s right to communicate with the news media, government agencies, and other third parties about wages, benefits, and other terms and conditions of employment are considered unlawfully overbroad. Although a company may control who may make official statements on its behalf, the Report cautions companies to make sure that their rules may not be read to ban employees from speaking to the media or other third parties on their own or on others’ behalf.
Rules Restricting Use of Company Logos, Copyrights, and Trademarks
The Report provides that although a company’s name and logo are usually copyright protected, handbook rules cannot bar employees’ fair protected use of that property, such as the right to use the name and logo on picket signs, leaflets, and other protest material. Similarly, an employer’s proprietary interests are not implicated by an employee’s non-commercial use of a name, logo, or other trademark to identify the employer in the course of Section 7 activity. The lesson here, according to the Report: a broad ban without any clarification will generally be found unlawfully overbroad.
Rules Restricting Photography and Recording
The Report recognizes that employees have a Section 7 right to photograph and make recordings in furtherance of their protected concerted activity, including the right to use personal devices for such pictures and recordings. As a result, the NLRB’s view is that rules imposing a total ban on such photography or recordings, or a ban on the use or possession of personal cameras or recording devices, are unlawfully overbroad where an employee would reasonably read them to prohibit the taking of pictures or recordings on non-work time.
Rules Regarding Conflict of Interests
The Report acknowledges that employees have the right to engage in concerted activity to improve the conditions of employment, even where that activity is in conflict with the company’s interests. Therefore, if a conflict of interest rule would reasonably be read to ban activities, such as a protest in front of the employer, organizing a boycott, or soliciting support for a union while on nonwork time, then the rule will be found unlawful. Where, however, the rule provides examples or clarifies that it is limited to legitimate business interests, the Report recognizes that the rule will reasonably be understood to prohibit only unprotected activity. Preventing employees from engaging in competing business is an example of a legitimate business interest.
The Report can be accessed at the General Counsel Memo page of the NLRB website: http://www.nlrb.gov/reports-guidance/general-counsel-memos. The Report contains numerous examples of policies that the NLRB found unlawful, as well as those it found lawful. Perhaps most importantly, the Report includes an explanation as to why the NLRB reached its conclusion as to a particular policy. The Report also contains a discussion of the employee handbook at Wendy’s International and the rules in that handbook the NLRB considered unlawfully overbroad. In addition, the Report includes replacement rules for that handbook which were the result of a negotiated settlement with the company – replacement rules that the General Counsel’s office considers lawful.
The Report is a valuable tool for those interested in learning how and why the NLRB perceives rules governing the workplace.
Answers: 1. Lawful. 2. Unlawful. 3. Unlawful. 4. Unlawful. 5. Unlawful. 6. Lawful. 7. Unlawful. 8. Unlawful. 9. Unlawful. 10. Unlawful. 11. Unlawful.
David H. Ganz is a Partner in the Labor & Employment Group at Gonzalez Saggio & Harlan LLP in the firm’s New Jersey/New York City Regional Offices. His practice includes counseling employers on employment-related issues and representing management in employment litigation in New Jersey and New York.