NLRB General Counsel Issues Wide-Ranging Report Discussing Lawful and Unlawful Workplace Rules

NLRB RulesThe National Labor Relations Board (NLRB) Office of General Counsel issued a wide-ranging report on March 18, 2015 discussing restrictions on employer workplace rules. This 30-page document broadly covers eight types of work rules that the NLRB has found to be unlawful, many of which can be found in personnel handbooks or other similar workplace policies. The General Counsel’s report also provides examples of rules that the NLRB has found to be lawful.

We encourage all members to read the report in its entirety, as it provides guidance and the NLRB’s reasoning for its positions. Additionally, an MSEC Labor Relations attorney will present on this guidance and other topical issues at the upcoming Employment Law Update conference. A link to the full report can be found at the end of this article. The eight types of rules discussed in the General Counsel’s report are briefly summarized below.

Rules Regulating Confidentiality. Although employers have a legitimate business interest in maintaining the confidentiality of sensitive business information, confidentiality rules are unlawful if they prohibit employees from disclosing information that would reasonably be considered a term or condition of employment. For example, a rule prohibiting employees from discussing “customer or employee information” is unlawful because it reasonably can be interpreted as prohibiting employees from discussing their terms and conditions of employment. On the other hand, a rule prohibiting the disclosure of “confidential financial data or other non-public proprietary company information” would be lawful because the rule does not impact terms and conditions of employment.

Rules Regulating Employee Conduct Toward the Company and Management. Section 7 of the National Labor Relations Act protects the right of employees to oppose or criticize their employers’ policies and the treatment they receive from supervisors. Rules that prohibit this kind of opposition or criticism are unlawful. For example, a rule that requires employees to “be respectful to the company and other employees” would be unlawful. Conversely, a rule that requires employees to be respectful and professional to “customers or any member of the public” would be lawful because it does not mention the employer or its management.

Rules Regulating Employee Conduct Towards Fellow Employees. Section 7 protects an employee’s right to “argue and debate” with other employees about terms and conditions of employment, even when these discussions become heated or contentious. Therefore, a blanket rule prohibiting “negative” or “inappropriate” discussions with, or statements about, co-workers can be unlawful. For example, a rule prohibiting “insulting or embarrassing” comments about employees would be unlawful because the rule would tend to limit an employee’s right to honestly discuss or debate terms and conditions of employment. On the other hand, a properly-drafted sexual harassment policy prohibiting “threatening or intimidating behavior” would be lawful.

Rules Regulating Employee Interaction with Third Parties. Section 7 is not limited to discussions within the workplace. Employees also have the right to discuss their terms and conditions of employment with the news media, government agencies, and other third parties. As the General Counsel pointed out, “While employers may lawfully control who makes official statements for the company, they must be careful to ensure their rules would not reasonably be read to ban employees from speaking to the media or other third parties on their own (or other employees’) behalf.”

Rules Regulating the Use of Company Logos, Copyrights, and Trademarks. Although employers have a legitimate interest in protecting their intellectual property rights, such as copyrights, trademarks, and logos, the NLRB’s position is that employees still may make fair use of a company’s name and logo or other trademark for non-commercial uses. For example, a rule prohibiting the use of company logos, trademarks, or graphics on social media sites would be unlawful. However, a rule that requires employees to “respect all copyright and other intellectual property laws” while permitting fair use for non-commercial purposes would be lawful.

Rules Regulating Photography and Recording. Employees have the right to take pictures and use personal devices to make recordings of actions in furtherance of protected Section 7 activity. Therefore, blanket workplace bans on photos and recordings are unlawful policies. For example, a rule prohibiting “unauthorized pictures or videos on company property” would be unlawful. Conversely, a rule prohibiting photography in patient care areas of a hospital to ensure patient privacy would be lawful.

Rules Prohibiting Employees from Leaving Work. The right to engage in protected concerted activity includes the right of employees to go on strike. Therefore, a rule that regulates when employees can leave the workplace is unlawful if employees reasonably could interpret the rule to prohibit protected strikes and walkouts. For example, a rule that penalizes employees for failing “to report to your scheduled shift for more than three consecutive days or walking off the job” is unlawful because “walking off the job” can be protected Section 7 activity. Presumably, however, a rule penalizing employees for failing to report to work, without any mention of “walking off the job,” would be lawful, though the General Counsel did not make this clear.

Rules Regulating Conflicts of Interest. Employees have the right to engage in protected Section 7 activity even when that activity conflicts with the employer’s interests. Thus, if a conflict of interest policy reasonably can be read to prohibit these types of activities the rule is unlawful. For example, a rule that prohibits employees from engaging in any action “not in the best interest of the company” would be unlawful. By contrast, a rule that requires employees not to “give, offer or promise anything of value to any representative of an outside business” would be lawful.

The lesson here is that frequently it can be very difficult to determine whether a particular work rule is lawful or unlawful under the NLRA. In many cases, the General Counsel’s Report discusses distinctions between lawful and unlawful work rules that are difficult to comprehend. For these reasons, we encourage all members to use caution when fashioning or enforcing workplace policies of the type discussed in this article.

For a full copy of the General Counsel’s Report click here.