In a March 2015 report to National Labor Relations Board (?NLRB?) regional directors, the NLRB General Counsel, Richard Griffin, Jr., provided apparent ?guidance? to employers for reference in drafting compliant employer policies. Although much of what Mr. Griffin outlined or identified as prohibited under the National Labor Relations Act (?NLRA? or ?Act?), has yet to be approved or disapproved by courts or the Board, he released a report suggesting that HR professionals needed guidance on how their policies should be changed. In releasing the report, he also cautioned that employers ?should not cut and paste,? as different companies will have different circumstances.
While many employers might think the NLRA applies only to unionized employees, they would be mistaken.?? The protections of the ?Act? actually apply to union and non-union businesses alike. So, all employers are wise to pay attention to the topics that Mr. Griffin, at least, believes require careful review.
An area of primary concern according to Mr. Griffin involves an employer?s efforts to restrict employee speech or communications. In this light, the guidance provided that the following are unlawful and inappropriate for inclusion in an Employee Handbook including rules that prohibit:
- Discussing ?customer or employee information? outside of work, including ?phone numbers and addresses.? [This policy allegedly has an overbroad reference to ?employee information?.]
- Disclosing proprietary or confidential information about [the employer, or] other associates (if the proprietary or confidential information relating to [the employer?s] associates was obtained in violation of law or lawful company policy). [This rule is overbroad because a reasonable employee would not understand how the employer determines what constitutes a lawful company policy.]
- Publishing or disclosing [the employer?s or] another?s confidential or other proprietary information. [While employers may ban disclosures of its own confidential information, the ostensibly broad reference to ?another?s information? calls into question the protections. More importantly, this type of policy could be interpreted to restrict an employee?s right to discuss wages and other terms and conditions of employment.]
Employee Conduct Rules
Employee conduct rules are common in employee handbooks,?but Mr. Griffin identified some typical?language as needing to be jettisoned including:
- Be respectful to the company, other employees, customers, partners and competitors.
- Do not make fun of, denigrate or defame your co-workers, customers, franchisees, suppliers, the company or?the company’s?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.
These rules were seen as ?unlawfully overbroad since employees reasonably would construe them to ban protected criticism or protests regarding their supervisors, management or the employer in general.?
Mr. Griffin?s report also included examples of prohibited and permitted handbook rules on:
- Employee interaction with third parties.
- Use of company logos, copyrights and trademarks.
- Restrictions on photography and recording.
- Restrictions on leaving work.
- Conflicts of interest.
SMART Tip: As noted, Mr. Griffin?s determinations, while insightful, are not controlling. So, while we do not encourage employers to necessarily fall into line based on issuance of the Report, we do remind and strongly encourage employers to routinely, and at least once a year, update their Employee Handbooks and related policies to ensure that they are up-to-date and compliant with the current state of the law.
The report, called Report of the General Counsel Concerning Employer Rules, is available at http://www.nlrb.gov/reports-guidance/general-counsel-memos.