If the National Labor Relations Board has its way, workplaces of the 21st century will be markedly different from those at the end of the 20th century – and the details of this future “vision” will come as a severe shock to businesses. Under a new Report issued by the NLRB General Counsel on March 18, 2015, employers (both union and non-union) will no longer be able to adopt general work rules requiring employees to “be respectful,” no longer be able to enforce policies prohibiting employees from walking off the job, no longer be able to generally prohibit tape recorders or cameras in the workplace, no longer be able to prohibit employees from appropriating company trademarks, logos, or copyrights, no longer be able to prohibit employees from sending “offensive” emails, no longer be able to prevent employees from disclosing “confidential” information, and no longer be able to enforce a host of other widely used handbook policies.
According to the NLRB’s Report, many such policies are now unlawful because they could be “construed” as restricting employees’ rights to engage in “concerted activities” protected by the National Labor Relations Act, even if the policies do not expressly restrict any concerted activity. The new rules cover both union and non-union employers. HR professionals should review the policy language that the Labor Board now considers unlawful and the language that it will approve as lawful (assistance from legal counsel is recommended), and modify handbooks and other work rules with a goal of continuing to achieve vital business goals while minimizing exposure to NLRB claims.
Overview of the New Legal Standards
The following are selected highlights (or lowlights, depending on your point of view) from the General Counsel’s Report. It is recommended that the full Report be reviewed in its entirety to fully understand those policies which the NRLB considers unlawful and those that the Board views as lawful (at least currently).
Both union and non-union employees have the right, under the National Labor Relations Act, to discuss wages, hours, and other terms and conditions of employment with coworkers as well as with nonemployees, such as union representatives. According to the NLRB, a policy which either specifically prohibits discussions or disclosures of terms and conditions of employment–such as wages, hours, or workplace complaints–or which could reasonably be understood to prohibit such discussions/disclosures, is unlawful. For example, a confidentiality rule which broadly encompasses “employee” or “personnel” information, without further clarification, would be unlawful because it could reasonably be construed to restrict protected communications.
Additional examples of unlawful confidentiality rules cited by the NLRB include:
- “Do not discuss customer or employee information outside of work, including phone numbers or addresses.”
- “Do not disclose proprietary or confidential information about the Company, or other employees, if the information was obtained in violation of any law or Company policy.”
- “Sharing conversations you overhear at the work site with your coworkers, the public, or anyone outside of your immediate work group is strictly prohibited.”
- “Discuss work matters only with employees who have a specific business reason to know or have access to such information . . . do not discuss work matters in public places."
- “If something is not public information, you must not share it.”
- “Confidential Information includes all information which, if lost or disclosed without authorization, could adversely affect the Company’s interests, image or reputation or compromise personal and private information of its members.”
Disrespectful or Rude Conduct
Under the National Labor Relations Act, both union and non-union employees have the right to criticize or protest their employer’s labor policies or treatment of employees. Thus, according to the NLRB, rules that could reasonably be read to prohibit criticism of the employer are unlawful.
For instance, a rule that prohibits employees from engaging in “disrespectful,” “negative,” “inappropriate,” or “rude” conduct toward the employer or any supervisor, absent sufficient clarification or context, will be found unlawful. Moreover, according to the Board, employee criticism of an employer does not lose protection simply because the criticism is false or defamatory. Therefore, a rule that bans false statements will be found unlawful by the NLRB unless it specifies that only maliciously false statements are prohibited.
On the other hand, a rule that requires employees to be respectful and professional solely to coworkers, clients, or competitors, but does not require the same behavior toward the employer or supervisors, is lawful. Employers have a legitimate business interest in having employees act professionally and courteously in their dealings with coworkers, customers, employer business partners, and other third parties but cannot require employees, without appropriate clarification, to act professionally and courteously toward supervisors or the company. (The Board did clarify that rules prohibiting conduct solely qualifying as direct insubordination would likely be lawful.)
Examples of unlawful “respectful conduct” rules cited by the Board include:
“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.”
“No defamatory, libelous, slanderous, or discriminatory comments about the Company, its customers and/or competitors, its employees, or management.”
“No disrespectful conduct or insubordination, including, but not limited to, refusing to follow orders from a supervisor or a designated representative.”
“Chronic resistance to proper work-related orders or discipline, even though not overt insubordination, will result in discipline.”
“Refrain from any action that would harm persons or property or cause damage to the Company’s business or reputation.”
“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.”
“Never engage in behavior that would undermine the reputation of the Employer, your peers, or yourself.”
Conduct Toward Coworkers
Employees also have a right to argue and debate with each other about unions, management, and their terms and conditions of employment. These discussions can become contentious but, from the NRLB’s viewpoint, are still immune from discipline even if the discussions include intemperate, abusive or inaccurate statements.
Thus, according to the Labor Board, a rule which bans “negative” or “inappropriate” discussions among employees, without further clarification, is unlawful, because it could be construed as prohibiting discussions and interactions that are protected.
In addition, although employers have a legitimate and substantial interest in maintaining a harassment-free workplace, the Labor Board declared that anti-harassment rules cannot be so broad that they could be construed as prohibiting vigorous debate or intemperate comments regarding unions or terms and conditions of employment.
Examples of unlawful employee-employee conduct rules listed by the Labor Board include:
“Don’t pick fights online.”
“Do not make insulting, embarrassing, hurtful, or abusive comments about other company employees online and avoid the use of offensive, derogatory, or prejudicial comments."
“Show proper consideration for others’ privacy and for topics that may be considered objectionable or inflammatory, such as politics and religion.”
“Do not send unwanted, offensive, or inappropriate e-mails.”
“Material that is fraudulent, harassing, embarrassing, sexually explicit, profane, obscene, intimidating, defamatory, or otherwise unlawful or inappropriate must not be sent by e-mail.”
Communications with Third Parties
Employees also have the right, under the National Labor Relations Act, to communicate with the news media, government agencies, and other third parties about wages, benefits, and other terms and conditions of employment. Rules that could reasonably be interpreted to restrict such communications will be declared unlawful by the Board. While employers may lawfully control who makes official statements for the company, they must ensure that the rules cannot be construed to ban employees from speaking to the media or other third parties on their own or on other employees’ behalf.
Examples of unlawful rules regulating third party communications, cited by the NLRB, include:
“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.”
“Employees are not authorized to answer questions from the news media. When approached for information, you should refer the person to the Media Relations Department.”
“If you are contacted by any government agency, you should contact the Law Department immediately for assistance.”
Use of Company Logos, Copyrights, and Trademarks
Although the Board recognized that copyright and trademark holders have a right to protect their intellectual property, the Board contends that employees have a right to fair use of that property under certain circumstances. For instance, a company’s name and logo may be protected by intellectual property laws, but the Board asserts that employees have a right to use the Company name and logo on picket signs, leaflets, and other protest material. Thus, the NLRB declared that broad bans on unauthorized use of intellectual property, absent clarification, will be found to be unlawful.
Examples of unlawful rules banning use of intellectual property, cited by the NLRB, include:
“Do not use any Company logos, trademarks, graphics, or advertising materials in social media.”
“Use of the Company’s name, address, or other information in your personal profile is banned. In addition, it is prohibited to use [the Employer’s] logos, trademarks, or any other copyrighted material.”
“Company logos and trademarks may not be used without written consent. . . .”
Photographs and Recording in the Workplace
The NLRB contends that employees have the legal right, under the National Labor Relations Act, to photograph and make recordings in furtherance of protected concerted activity, as well as the right to possess and use personal devices to take such pictures and recordings. Thus, the NLRB considers total bans on photos or recordings, or the use or possession of cameras or recording devices, to be unlawful, particularly where they could be construed as prohibiting the taking of pictures or recordings on non-work time.
Examples of unlawful rules banning photos and recordings, according to the Board, include:
“Taking unauthorized pictures or video on company property is prohibited.”
“No employee shall use any recording device, including, but not limited to, audio, video, or digital, for the purpose of recording any employee or operation . . . ”
“Use or possession of personal electronic equipment on Company property is prohibited.”
“No personal computers or data storage devices on Company property.”
“No wearing cell phones, making personal calls, or viewing or sending texts while on duty.”
Prohibiting Employees from Leaving Work
The Board even objects to rules prohibiting employees from walking away from a job during a shift. According to the NLRB, rules regulating when employees can leave work are unlawful if the rule could be construed to forbid protected strike actions and walkouts. The Board cited the following as an unlawful restriction on leaving work:
- “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.”
Under the National Labor Relations Act, the Labor Board recognizes the employees’ right to engage in concerted activities to improve their terms and conditions of employment, even if those activities are in conflict with the employer’s interests. For instance, employees may protest in front of the company, organize a boycott, and solicit support for a union while on non-work time. Therefore, the Board declared that if a conflict of interest policy could be construed or interpreted as prohibiting such activities, the rule is unlawful. The Board cited the following as an example of an unlawful rule:
- “Employees may not engage in any action that is not in the best interest of the Company.”
Recommendations for Employers
Obviously the scope of the new NLRB rules is far-reaching and potentially implicates policies found in many employee handbooks today. There are several points to keep in mind when evaluating an action plan to respond to the new rules:
NRLB rules and decisions are often in conflict with the decisions of federal courts, and it is by no means certain that federal courts will find the above policies to be unlawful. However, until federal courts start issuing decisions rejecting or upholding the NRLB rules, employers are advised to take whatever reasonable steps can be taken to revise their policies as much as possible to comply with the new rules.
The NLRB rules apply to both union and non-union employers. In fact, many, if not most, of NLRB claims involving handbook policies are being brought against non-union employers. Gone are the days when non-union employers could feel somewhat protected from the NLRB spotlight.
The full Report of the General Counsel contains recommendations and examples of policy language that will meet with the Board’s approval. HR professionals are encouraged to review the full Report and/or work with legal counsel to discuss the impact of the Report on current handbook policies and other work rules.
Aside from the new NLRB rules, there are a number of case decisions, state and federal legislative changes, and other developments that necessitate frequent review of handbook policies and other work rules. It is highly recommended that employers adopt an annual review requirement for their personnel policies in order to reduce legal exposure.
In summary, the final take-away from the new General Counsel Report should not be that all policies on the above topics should be discarded. Employers still have legal rights and can take affirmative steps to protect them. Greater care must be taken, however, to navigate the subtle differences between a lawful and an unlawful policy. In light of the new rules, we recommend a review of your current employee handbook and policies. Please contact one of our employment lawyers to ensure all of your policies are lawful and enforceable.