CLEAR DIRECTIVES OR CLEAR AS MUD?: NLRB’S GENERAL COUNSEL ISSUES REPORT ON EMPLOYER RULES AND POLICIES
For the last five years, the National Labor Relations Board (NLRB) has been aggressively reviewing and issuing decisions regarding employer rules and policies and whether such rules and policies violate Section 7 of the National Labor Relations Act (Act). What once started as a relatively limited review of social media policies has now broadened to other policies and procedures of employers, including the areas of confidentiality, email and technology use, and conduct in the workplace. These decisions by the NLRB have required many employers, both union and non-union, to revisit and redraft employee policies that could be interpreted to violate employee rights protected by the Act. However, even with the reported decisions, it was still difficult for an employer to know whether a policy “chilled” an employee’s Section 7 rights under the Act.
On March 18, 2015, Richard Griffin, the NLRB’s general counsel issued a lengthy report (Memorandum GC 15-04) in an attempt to provide guidance on the issue of employer handbook policies and their compliance with the Act. Citing Lutheran Heritage Village – Livonia, 343 NLRB 646 (2004), the mere maintenance of a work rule may violate Section 8(a)(1) of the Act if the rule has a chilling effect on the employee’s Section 7 activity. Additionally, even if a rule does not explicitly prohibit Section 7 activity, it may still be found unlawful if 1) employees would reasonably construe the rule’s language to prohibit Section 7 activity; 2) the rule was promulgated in response to union or other Section 7 activity; or 3) the rule was actually applied to restrict the exercise of Section 7 rights. This 30 page report is in response to requests from labor law practitioners for direction on the legality of employer rules and policy statements under the first prong of the Lutheran Heritage test.
The report is divided into two parts. The first part of the report explains generally the law for each area discussed based on prior NLRB decisions and then compares specific rules found to be unlawful with rules found to be lawful and explains the rationale for each. The various rules discussed include confidentiality, employee conduct toward employers, supervisors and fellow employees, third party communications, use of company intellectual property, employee’s use of photography/recording, restrictions on employees from leaving work, and conflicts of interest.
The second part of the report discusses handbook rules involving several of these issues in a recently settled unfair labor practice charge against Wendy’s International, LLC. The Office of General Counsel (OGC) initially found that several of Wendy’s handbook rules were overbroad and facially unlawful under Lutheran Heritage’s first prong. The rules involved in that charge consisted of the handbook disclosure provision, the social media policy, the confidential information provision, the employee conduct provision, the no distribution/no solicitation provision, and the restaurant telephone/cell phone/camera phone/recording devises provision. The report provides the unlawful rules as found by the OGC along with Wendy’s modified rules adopted pursuant to an informal settlement agreement which the OGC does not believe violate the Act.
Based on this report, employers should carefully review their policies, rules, and handbooks to assure that they comply with Memorandum GC 15-04. Failure to do so may result in an action by the OGC to force an employer to modify or remove what it believes to be unlawful language and post and distribute notices to all employees previously subject to the unlawful rule informing them of their rights under the Act.