NLRB’s relentless attack on employment policies continues

by Susan Fitzke, Neil Goldsmith and Sarah Gorajski, Esqs., Littler Mendelson, Minneapolis

In recent years, the National Labor Relations Board (NLRB) has steadily, aggressively increased its scrutiny of employment policies found in almost every employee handbook. Seemingly well-intentioned and generally accepted policies have been found to violate the National Labor Relations Act (NLRA) because they are seen as chilling employee rights to engage in protected, concerted activity.

In March, NLRB General Counsel (CG) Richard Griffin issued a report addressing the intersection of common employment policies and the NLRA. While not binding, the report reveals likely NLRB enforcement priorities. Employers should take heed.

The GC’s report provides direction regarding the legality of some of the most frequently litigated handbook topics. Even for employers experienced with recent NLRB cases, there are surprises. The report describes workplace rules as unlawful not only when they reasonably would be read to prohibit protected activities, but even when the rules simply seem ambiguous.

The policies under attack

Keeping information confidential: The report essentially states that rules prohibiting disclosure of employee or personnel information are virtually always unlawful. This includes prohibitions on disclosing employee lists, contact information, personnel files, handbooks, policies and pay or benefits information. Broad rules explicitly or implicitly encompassing employment information or workplace conditions will be considered unlawful if they don’t clarify that they exclude discussions protected by the NLRA.

Disparaging the company: The report identifies as unlawful rules that the GC found explicitly or implicitly limit employee rights to engage in zealous advocacy and criticism of their employers, both internally and externally. That includes some rules requiring civility toward management or prohibiting employees from engaging in “disrespectful,” “negative,” “inappropriate” or “rude” conduct toward supervisors.

The report also took issue with rules requiring only truthful statements about the employer out of concern this restricts protected statements. Even rules prohibiting “defamatory” conduct are not safe from scrutiny.

Acting respectfully and courteously: The NLRA protects employees’ right to argue and debate one another about unions, management and workplace conditions. Even when these discussions become “contentious … intemperate, abusive and inaccurate,” the GC states that they do not lose protection. As a result, prohibitions on “negative” or “inappropriate” discussions, or prohibitions on co-worker harassment (not discriminatory or sexual harassment) are generally considered unlawful.

Making internal complaints: Exclusive complaint reporting requirements that can be construed to restrict protected complaints to co-workers or the public are considered overly broad. Even suggesting that employees should use an internal complaint procedure instead of communicating to co-workers or others is unlawful.

Communicating with the media: Rules restricting or requiring preapproval of public statements about the employer are viewed as interfering with rights protected by the NLRA because they restrict employees’ ability to publicize labor disputes. Employers must ensure that rules do not prevent employees from speaking to the media.

Using company logos, copyrights and trademarks: The report concludes that workplace rules cannot prohibit employees’ fair protected use of the employer’s intellectual property. In the GC’s estimation, fair use includes, among others, using the employer’s name and logo on picket signs, leaflets and other protest material.

Soliciting other employees: The NLRB has considered presumptively invalid rules banning solicitation during business hours. In the report, the GC states that solicitation rules should be drafted to allow employee solicitation during nonwork time. The GC will treat electronic distributions of literature, such as through email, as coworker solicitations and subject to the rule permitting such communications during nonwork time.

Taking pictures or video on company property: The GC takes the position that employees have the right to photograph and make recordings in the workplace, including the right to use personal devices for that purpose, during nonwork time. The report explains that restricting that right could prevent employees from engaging in concerted activities, such as “posting a photo of employees carrying a picket sign, … documenting a health or safety concern, or discussing or making complaints about statements made by [the employer] or fellow employees.”

Review handbook, policies

The NLRB’s focus, when reviewing policies and handbook provisions, is on what a reasonable employee would infer after reviewing them. Innocent mistakes and misunderstandings, or lack of intent to mislead employees or to restrict the exercise of their rights is no defense to a claim that a rule violates the NLRA.

Accordingly, employers should carefully review their handbooks and policies in light of the NLRB’s current precedents and positions.