by Jason Weber
There is a common misconception that the National Labor Relations Act (NLRA) only confers rights on unionized employees. In actuality, the NLRA applies to most private-sector employees, regardless of whether they are unionized. Many private-sector employers have begun to discover this reality firsthand as the National Labor Relations Board (NLRB)—the administrative agency charged with the enforcement of the NLRA—increasingly has targeted unlawful employee handbook rules. To promote awareness of this issue, in March of this year, the NLRB issued an advice memorandum (i.e., Memorandum GC 15-04) that identified common employment policies that may run afoul of the NLRA.
The bedrock of the NLRA is Section 7, which guarantees employees the right to “engage in concerned activities,” including the right to discuss their terms and conditions of employment (e.g., compensation, working conditions) with each other. An employer engages in an unfair labor practice when it denies or limits the Section 7 rights of its employees. Within the context of employment policies, an unfair labor practice is not limited to instances in which a rule explicitly restricts protected concerted activity. Rather, a well-intentioned employment policy may violate the NLRA if employees would reasonably construe the rule’s language to prohibit Section 7 activity.
A. Confidentiality Policies:
While private-sector employers are lawfully permitted to implement policies that are intended to safeguard the privacy of certain business information, this right is not unfettered. A confidentiality policy can easily encroach on an employee’s Section 7 rights—and thereby become an unfair labor practice—if the policy could reasonably be construed to restrict Section 7-protected communications, such as the discussion of wages, hours and other workplace complaints among co-workers. For example, a policy that prohibits an employee from disclosing “the Employer’s or another’s confidential or proprietary information” would likely be held unlawful because it does not make clear that communications to discuss the terms and conditions of another’s (i.e., an employee’s) employment are exempted. Conversely, a policy that generically prohibits the “unauthorized disclosure of business secrets or other confidential information” would likely be found lawful because it does not reference information regarding employees or otherwise contain language that would reasonably be construed to prohibit Section 7 communications.
B. Employee Conduct Policies:
In a similar vein, while employers have a legitimate interest in ensuring employees act professionally and courteously in their dealings with co-workers, customers and other third parties, overly broad policies risk running afoul of the NLRA. An employer’s ability to regulate employee conduct depends upon the interaction at play.
With respect to employee-employer conduct, an employer is within its right to implement policies that prohibit insubordinate or threatening conduct; however, it may not restrict an employee’s right to criticize or protest its labor policies or treatment of employees. For example, a policy that requires employees to “be respectful to the company, other employees, customers, partners and competitors,” would likely be unlawful because it bans conduct that does not rise to the level of insubordination.
With respect to employee-employee conduct, an employer must similarly be careful not to implement a policy that would chill an employee’s right to debate with co-workers about unions, management and the terms and conditions of their employment. For example, a rule that prohibits sending “unwanted, offensive, or inappropriate e-mails” would be deemed unlawful because of its overly broad scope, which might encompass communications regarding management, labor disputes, etc.
C. Personal Electronic Device Policies:
Employees also have a Section 7 right to photograph and make recordings in furtherance of their protected concerted activities. Cognizant of this right, the NLRB has been especially critical of bans that restrict the use of personal electronic devices (e.g., cell phones) at work. For example, a rule that prohibits employees from “wearing cell phones, making personal calls or viewing or sending texts while on duty” would be deemed unlawful by the NLRB because employees could reasonably interpret “on duty” to include non-work time (e.g., breaks and meals).
In sum, employee handbooks are likely to be at the forefront of NLRB scrutiny for years to come. A seemingly innocuous workplace rule that is well-intentioned is no defense if the rule could reasonably be interpreted to restrict the exercise of an employee’s Section 7 rights. Narrowly restricting workplace rules and providing context are key to minimizing the risk of an employee handbook becoming the basis of an unfair labor practice charge. For this reason, “less is better” is the new mantra.
Jason Weber is an associate at Thompson, Coe, Cousins & Irons, LLP. He can be reached at firstname.lastname@example.org.