By Nelson Cary and Ashley Manfull
Last week, NLRB General Counsel (GC) Richard F. Griffin, Jr. released a new report addressing problematic employee handbook provisions which could be “reasonably construed” as having a chilling effect on employees’ Section 7 activity. Similar to the three reports previously issued by predecessor Lafe Solomon on social media cases, Griffin offers the report as guidance on his views of “this evolving area of labor law,” with hopes that it will motivate employers to review their handbooks and make any necessary changes.
The 30-page report is divided into two parts. The first 20 pages offer a comparison of various handbook rules the GC has found unlawful and lawful, some of which the NLRB has likewise found to be lawful and unlawful, with an explanation of the GC’s reasoning. The last 10 pages of the report analyze a large employer’s handbook rules which the GC recently found unlawful in an unfair labor practice investigation, along with the revised rules implemented by the employer in settlement of the charge.
This report is a good summary and reminder that it is not just an employer’s social media policy that the NLRB is concerned about. The first part of Griffin’s report identifies eight other types of policies frequently held to chill Section 7 rights, including: (1) confidentiality; (2) employee conduct toward the company and/or supervisors; (3) employee conduct toward other employees; (4) interactions with third parties; (5) protection of employer logos, copyrights and trademarks; (6) photography and recording; (7) leaving work; and (8) conflicts of interest.
For each type of policy, Griffin offers several examples of policies found lawful and unlawful, such as the following:
- Rules prohibiting employees from discussing “customer or employee information” or publishing “the employer’s or another’s confidential or other proprietary information,” without specific examples. In comparison, confidentiality policies that identify specific types of confidential information not to be disclosed are lawful because employees would understand such policies do not address Section 7-protected activity.
- Rules requiring employees to be “respectful,” or prohibiting “insubordination” or conduct that “damages the reputation of the company.” Griffin explains that employees have a right to criticize an employer’s labor policies and treatment of employees, even in a public forum.
- Rules that require employees to refer all questions from the news media to the employer’s media relations department, without providing specific examples of inquiries which must be forwarded to an official spokesperson.
- Overly broad policies that prohibit employees’ non-commercial use of an employer’s name, logo, or trademark to identify the employer in the course of Section 7 activity.
- Rules limiting the use of camera phones and other recording devices that establish a blanket prohibition of employees possessing or using personal electronic equipment or recording on employer property. While certain limitations can be imposed to protect confidentiality and employee privacy, employees must be permitted to take pictures or video of concerted protected activities.
While the General Counsel’s latest report is helpful in giving employers a better understanding of the types of policies the GC and the NLRB are targeting, employers should resist the urge to simply “cut and paste” into their own handbook various policies identified as lawful in the report. As expressed multiple times throughout the report, and in prior posts on this blog, the assessment of handbook policies looks at the entire context in which the policy appears. Therefore, language that would be unlawful in isolation may be lawful based on its context and location in the handbook, and vice versa.
Moreover, while some of the handbook provisions the General Counsel relies upon come straight from NLRB decisions, others constitute only his enforcement position. The NLRB may not ultimately agree with him, thus emphasizing the need for legal review.
Finally, labor professionals must keep in mind that there is no uniform policy language that will ensure the NLRB’s (or the GC’s) blessing. Unfortunately, compliance with Section 7 will remain a moving target as the NLRB continues to explore these issues with heightened scrutiny.