The National Labor Relations Board (NLRB) has made it clear that it will aggressively police employee handbooks and conduct policies, including those that cover non-union represented employers. In an effort to help employers understand the full reach of this effort, on March 18, 2015, the NLRB’s General Counsel (GC) issued Memorandum 15-04, Report of the General Counsel Concerning Employer Rules (Memorandum). The Memorandum, which can be found on the NLRB’s web site, www.nlrb.gov, summarizes numerous recent cases regarding when employer policies violate the National Labor Relations Act (Act).
The Memorandum explains that a work rule violates the Act when “employees would reasonably construe” the rule as prohibiting activity protected by Section 7 of the Act. Protected activity generally includes discussing the terms and conditions of employment, criticizing management (short of maliciously false statements or attacks on the employer’s products), contacting third parties (such as a union or the media) for support and filing charges with the NLRB. The mere maintenance of an illegal work rule violates the Act, regardless of whether the employer applied it in an illegal fashion.
The Memorandum contains many examples of legal and illegal work rules and explains why they are legal or illegal. Here are a few highlights:
Confidentiality rules violate the Act if they bar employees from discussing the terms or conditions of employment. Therefore, subjecting employee-related information to confidentiality restrictions generally violates the Act. Here are some examples the Memorandum cites:
- Do not discuss “customer or employee information” outside of work.
- “You must not disclose proprietary or confidential information about [the employer or] other associates.”
- No unauthorized disclosure of “business secrets” or other confidential information.
- “Do not disclose confidential financial data or other non-public proprietary company information.”
Employees have the right to criticize their employer’s treatment of employees so long as they fall short of being maliciously false. Therefore, employer rules that prohibit employees from engaging in “disrespectful,” “negative,” “inappropriate” or “rude” conduct generally violate the Act. Here are some examples the Memorandum cites:
- “Be respectful of others and the Company.”
- “Defamatory, libelous, slanderous or discriminatory comments about the Company … or management.”
- “Disrespectful conduct or insubordination.”
- “Statements that damage the Company.”
- “Insulting, embarrassing, hurtful or abusive comments about other company employees.”
- “Work in a cooperative manner with management/supervision, coworkers ….”
- “Rudeness or unprofessional behavior toward a customer ….”
- Being insubordinate, threatening, intimidating, disrespectful or assaulting a manager.”
- “Threatening, intimidating, coercing or otherwise interfering with the job performance of other employees or visitors.”
Contact with Third Parties
Employees have a right to contact third parties, such as unions, the media and the NLRB to discuss the terms and conditions of their employment. Therefore, employer rules that restrict this right violate the Act. Here are some examples the Memorandum cites:
- Employees are not “authorized to speak to any representatives of the … media about company matters” without HR authorization.
- “All inquiries from the media must be referred to the Director of Operations.”
- “If you are contacted by any government agency you should contact the Law Department.”
- “It is imperative that one person speaks for the Company to deliver an appropriate message and avoid giving misinformation in any media inquiry … Respond to media inquiries by stating “I am not authorized to comment for the Company. Let me have our public affairs office contact you.”
A finding by the Board that a policy is unlawful can result in the employer having to make a public posting retracting the policy and could invalidate any discipline issued under the policy. Therefore, the Memorandum, which covers a number of other work rules and policies, should be a useful guide for employers going forward.