On March 18, 2015, the General Counsel of the National Labor Relations Board (“NLRB”) issued a report setting out the NLRB’s view on employee handbook policy language.
Section 7 of the National Labor Relations Act, which is enforced by the NLRB, protects employees’ rights to engage in certain protected activities. As explained in the report, protected activities include:
- Discussing wages, hours, and other terms and conditions of employment with fellow employees as well as with nonemployees such as union representatives.
- Criticizing or protesting the employer’s labor policies or treatment of employees.
- Arguing and debating among employees about unions, management, and terms and conditions of employment.
- Communicating with the news media, government agencies, and other third parties about wages, benefits, and other terms and conditions of employment.
- Taking photographs and making recordings in furtherance of protected concerted activity.
- Going on strike.
- Engaging in concerted activity to improve their terms and conditions of employment, even if that activity is in conflict with the employer’s interests.
The report clarifies what handbook language, in the NLRB’s view, violates employees’ Section 7 rights. Highlights of the report include the following:
A confidentiality policy violates the Act if it specifically prohibits employees from discussing the terms and conditions of their employment or reasonably would be read to prohibit such discussions. The scope of confidential information should be defined sufficiently to make clear that “confidential information” does not include information relating to the terms and conditions of employment.
Policies Regulating Employee Conduct Toward the Company and Supervisors
Rules that specifically ban or reasonably would be interpreted to ban employees from criticizing the employer or management are unlawful, absent sufficient clarification or context. An employer may lawfully require employees to be respectful and professional to individuals other than the employer or management. (e.g., coworkers, clients, competitors, and members of the public).
Policies Regulating Employee Conduct Towards Coworkers
Language that broadly prohibits discussions among employees of negative, inappropriate, controversial, or otherwise “inflammatory” subjects may be unlawfully overbroad absent clarification of the intent of the policy.
Policies Regulating Employee Communication with Third Parties
A handbook rule which prohibits or reasonably would be interpreted to prohibit employees from discussing terms and conditions of employment with third parties would be considered unlawful.
Policies Regulating Employee Use of Company Logos, Copyrights, and Trademarks
An employer may not prohibit employees’ use of the employer’s logos, copyrights, or trademarks for non-commercial purposes. While acknowledging that an employer’s intellectual property rights are protected by law, the NLRB takes the position that “[e]mployer proprietary interests are not implicated by employees’ non-commercial use of a name, logo, or other trademark to identify the employer in the course of Section 7 activity.”
Policies Restricting Photography and Recording
A total ban on employees’ right to take photographs or make recordings, including the use or possession of personal cameras or recording devices, is unlawful. Language should appropriately limit the scope of the prohibition so that it would not be read to prohibit taking photographs or making recordings in furtherance of protected concerted activities.
Policies Restricting Employees from Leaving Work
A rule restricting employees from leaving work is unlawful if it contains language that prohibits or would be read to prohibit protected strike actions and walkouts.
A conflict-of-interest rule is unlawful when it prohibits or reasonably would be read to prohibit employees from engaging in concerted activity to improve their terms and conditions of employment. This right is protected even if the activity is in conflict with the employer’s interests, such as protesting in front of the employer’s building, organizing a boycott, and soliciting support for a union while on non-work time.
The key to making sure your employee handbook will pass muster if reviewed by the NLRB is to avoid using overly broad language and to provide sufficient clarification and explanation. The NLRB will examine lawfulness of a handbook policy based on what it says as well as how it would reasonably be read by employees. Employers are encouraged to review the General Counsel’s report. It offers examples of language that the NLRB has found lawful and unlawful. It is also recommended to have legal counsel review the handbook to ensure compliance with the Act.