If You Can’t Say Anything Nice….NLRB General Counsel Releases New Report on Employee Handbook Rules
The National Labor Relations Board (NLRB) General Counsel released a report on recent case developments on March 18 involving employee handbook conduct restrictions. The stated purpose was to focus on rules that may have a chilling effect on protected concerted activity. Section 7 of the National Labor Relations Act defines concerted activity as when two or more employees act together to improve their terms and conditions of employment. This applies whether an employer is unionized, or not. Generally, the NLRB (the organization charged with enforcing the NLRA) takes a broad view of what is concerted activity. The standard outlined in the General Counsel’s opinion is whether an employee would “reasonably construe” the employer rule to prohibit protected activity. The report provides several examples of what the General Counsel (based on some Board decisions) considers unlawful handbook language—many that would appear counter-intuitive to employers:
“Do not discuss customer or employee information outside of work, including phone numbers and addresses.”
The NLRB found this handbook rule to be unlawful as being overly broad and restrictive of disclosure of employee information.
“Discuss work matters only with other employees who have a specific business reason to know or have access to such information….Do not discuss work matters in public places.”
The Board found this rule to be facially unlawful because it did not clarify, in express language or otherwise, the type of information that is restricted. It found similar language unlawful because it believed that an employee would reasonably understand it to restrict discussions of non-public information such as employee wages, benefits and other conditions of employment—all, which the NLRB believes, are part of protected concerted activity.
The Board did approve the following types of restrictions on disclosure of business information:
“No unauthorized disclosure of business secrets or other confidential information.”
“Do not disclose confidential financial data, or other non-public proprietary company information. Do not share confidential information regarding business partners, vendors or customers.”
The General Counsel Memo also addressed several handbook rules that cover employee conduct toward the Company and Supervisors. The criticism of these rules was that federal law allows employees the right to criticize or protest their employer’s labor policies or treatment of employees. As such, the NLRB found the following handbook restrictions to be unlawful:
“Be respectful of others and the Company.”
“Do not make fun of, denigrate, or defame your co-workers, customers, franchisees, suppliers, the Company, or our competitors.”
“Never engage in behavior that would undermine the reputation of the Company, your peers or yourself.”
The primary sticking point appears to be any conduct rules that mention the Company or management. If the handbook restrictions simply require the employee to be respectful to customers and competitors, it will not be considered unlawful by the NLRB. Likewise, some rules that only require employees to cooperate with each other in the performance of their work are allowable. However, the NLRB specifically found the following restriction regarding online activity to be unlawful:
“Do not make insulting, embarrassing, hurtful or abusive comments about other company employees online and avoid the use of offensive, derogatory, or prejudicial comments.”
The memo goes on to address many more areas of handbook restrictions including:
- Employee communication with third parties
- Employee use of company logos and trademarks (see our previous post on NLRB’s Ruling on Hat Restrictions)
- Photography and recording by employees
- Employee leaving work
Employers should read the General Counsel’s memo very carefully. Although the logic about what is restricted and what is not may appear inconsistent at times, the primary message is that the NLRB is focused on employer handbook restrictions that they believe affect employees’ ability to discuss their working conditions and to criticize their employer. Additionally, employers should remember that just because you do not have a union does not mean these rules don’t apply to you.