National Labor Relations Board Counsel Memorandum Sheds Light on Handbook Provisions It Considers to be Problematic
By: Lisa M. Schonbeck, Esq.
On March 18, 2015, the Office of the General Counsel for the National Labor Relations Board (“NLRB”) released a Memorandum that highlights the rights employees are afforded under Section 7 of the National Labor Relations Act (“NLRA”), and common employee handbook provisions that, according to the NLRB, may impose unlawful restrictions on those rights. The Memorandum also provides specific examples of lawful and unlawful employee handbook provisions, as well as an explanation from the NLRB as to why each provision was found to be lawful or unlawful.
The NLRB is charged with enforcing the NLRA, which, among other things, affords employees the right under Section 7 to “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Concerted activities can include employees addressing an employer about improving their pay or employees discussing work-related issues with one another. Section 8(1)(a) of the NLRA prohibits employers from interfering with, or otherwise restraining or coercing employees from exercising their Section 7 rights. The protections of Section 7 extend to both union and non-union employees, without regard to whether any portion of the employer’s workforce is unionized.
Over the past few years, the NLRB has scrutinized employee handbooks and determined that many provisions violate Section 8(1)(a) of the NLRA because they either explicitly restrict protected concerted activity, or because the language could be reasonably understood by employees to restrict such activity.
The General Counsel’s Memorandum seeks to guide employers in reviewing their employee handbooks and ensuring they conform to the requirements of the NLRA. The Memorandum discusses the different rights that Section 7 affords employees and the common handbook provisions that may impact those rights.
Under Section 7, employees have the right to discuss wages, hours and other terms and conditions of employment. The NLRB has found that confidentiality provisions that prohibit disclosure of employee information are unlawful. For instance, a provision that precludes discussing “employee information” outside of work was found to be overbroad. Additionally, a provision that prohibits employees from discussing work matters only with other employees “who have a specific business reason to know or have access to such information” would be unlawful, as the provision could be interpreted by employees as a restriction on their right to discuss the terms and conditions of their employment.
In contrast, the NLRB found provisions that seek to protect “business secrets,” “non-public proprietary company information,” or “information regarding business partners, vendors or customers” lawful. The basis for the NLRB’s determination regarding these provisions was that they do not reference information regarding employees or employee terms and conditions of employment, and they do not include an overbroad definition of the term “confidential.”
The NLRB noted, however, that confidentiality provisions containing broad language may be upheld if the context in which they are found indicates they are not meant to prohibit Section 7 activity. This is not to say, however, that a disclaimer stating that the policy does not intend to restrict Section 7 rights will save the employer from a ruling that the policy violates the NLRA.
Employee Conduct toward the Company and Supervisors
Employees also have the right, under Section 7, to criticize or protest their employer’s labor policies or treatment of employees. Many employers may be surprised to learn that the NLRB takes the position that employer policies prohibiting employees from engaging in “disrespectful,” “negative” or “rude” conduct toward an employer violates this right. For instance, the NLRB determined that a provision that required employees to “[b]e respectful of others and the Company” violated Section 8(a)(1). Likewise, provisions that ban insubordination in addition to conduct that does not rise to that level, such as “disrespectful conduct,” may also run afoul of the NLRA. Social media policies that prohibit employees from posting on social media any content that could affect the employer’s business operation or reputation have also been found unlawful because they could be interpreted to prevent employees from criticizing an employer’s labor policies or treatment of employees, which an employee has a right to do.
The Memorandum makes clear, however, that employees do not have the right to disparage an employer’s product. Additionally, an employer can include provisions in employee handbooks prohibiting employees from being rude or unprofessional towards customers and members of the public, and requiring employees to cooperate with one another in the performance of their work.
Tips for Employers
The NLRB’s Memorandum contains additional descriptions of employee rights under Section 7 of the NLRA and lawful and unlawful employee handbook provisions that relate to those rights. Employers should become familiar with the rights employees are afforded under Section 7, and should review their employee handbooks in light of the General Counsel’s Memorandum to determine whether any of their provisions facially restrict those rights, or could be reasonably construed to do so.
Leech Tishman’s Employment Practice Group is available to discuss with you the NLRB’s new guidance and best practices to avoid claims for violation of the NLRA, and has experience drafting and revising employee policies and handbooks in this regard.
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