The National Labor Relations Act (NLRA) was enacted in 1935 to protect employee rights, encourage collective bargaining and curtail and discourage unsavory employment practices. Many mistakenly believe the NLRA applies only in the context of union activity. In reality, it applies to all employers, and it has made a resurgence in relevancy as of late.
The federal agency responsible for enforcing the NLRA is the National Labor Relations Board (NLRB). The NLRB’s General Counsel, Richard Griffin, Jr., recently published a memorandum discussing the agency’s decisions impacting employee handbook rules. To understand and apply the memorandum, one must first understand the basics of what the NLRA does. First, it protects employees’ rights to engage in “protected concerted activity.” In broad terms, if two or more employees act together to improve working conditions or wages, their activity is “concerted.” That activity is generally “protected” unless it consists of reckless or malicious behavior, such as violence, sabotage or defamatory statements. The NLRA goes even farther, though. It makes it unlawful for an employer to “interfere with, restrain or coerce employees” in the exercise of their rights to engage in protected concerted activity.
Putting the above in plain speak, employees have a right to discuss the terms and conditions of their employment, and employers cannot seek to prevent such interaction. It is this prohibition on employer interference that the NLRB’s general counsel sought to address in his memorandum. While most can easily accept and digest the notion that a blatant prohibition on protected concerted activity is unlawful, the NLRA goes beyond that. The NLRA makes a rule unlawful if employees reading it could reasonably construe the rule to restrict them from engaging in protected concerted activity. This is where things get complicated. Mr. Griffin described his objective in drafting the memorandum as follows:
Although I believe that most employers do not draft their employee handbooks with the object of prohibiting or restricting conduct protected by the National Labor Relations Act, the law does not allow even well-intentioned rules that would inhibit employees from engaging in activities protected by the Act …. I am publishing this report to offer guidance on my views of this evolving area of labor law, with the hope that it will help employers to review their handbooks and other rules, and conform them, if necessary, to ensure that they are lawful.
The memorandum then goes on to give specific examples of employee handbook rules that were found unlawful and lawful. Hang on to your hats, because many of these are not intuitive.
Unlawful confidentiality rules:
Lawful confidentiality rules:
- Do not discuss “customer or employer information” outside of work, including “phone numbers [and] addresses.”
- “You must not disclose proprietary or confidential information about [the Employer, or] other associates (if the proprietary or confidential information relating to [the Employer’s] associates was obtained in violation of law of lawful Company policy).”
- “Never publish or disclose [the Employer’s] or another’s confidential or proprietary information.”
Unlawful rules on employee conduct toward employer:
- No unauthorized disclosure of “business secrets or other confidential information.”
- “Misuse or unauthorized disclosure of confidential information not otherwise available to persons or firms outside [Employer] is cause for disciplinary action, including termination.”
- “Do not disclose financial data, or other non-public proprietary company information. Do not share confidential information regarding business partners, vendors and customers.”
Lawful rules regulating employee conduct toward the employer:
- “[B]e respectful to the company, other employees, customers, partners, and competitors.”
- Do “not make fun of, denigrate, or defame your co-workers, customers, franchisees, suppliers, the Company, or our competitors.”
- “Be respectful of others and the Company.”
Unlawful employee-employee conduct:
- No “rudeness or unprofessional behavior toward a customer, or anyone in contact with” the company.
- “Employees will not be discourteous or disrespectful to a customer or any member of the public while in the course and scope of [company] business.”
- “Each employee is expected to work in a cooperative manner with management/supervision, coworkers, customers and vendors.”
- “Being insubordinate, threatening, intimidating, disrespectful or assaulting a manager/supervisor, coworker, customer or vendor will result in” discipline.
Lawful employee-employee conduct:
- “[D]on’t pick fights” online.
- Do not make “insulting, embarrassing, hurtful or abusive comments about other company employees online,” and “avoid the use of offensive, derogatory, or prejudicial comments.”
- “[S]how proper consideration for others’ privacy and for topics that may be considered objectionable or inflammatory, such as politics and religion.”
- Do not send “unwanted, offensive, or inappropriate” e-mail.
Unlawful rules regulating third-party communications:
- “Making inappropriate gestures, including visual staring.”
- Any logos or graphics worn by employees “must not reflect any form of violent, discriminatory, abusive, offensive, demeaning, or otherwise unprofessional message.”
- “[T]hreatening, intimidating, coercing, or otherwise interfering with the job performance of fellow employees or visitors.”
- No “harassment of employees, patients or facility visitors.”
- No “use of racial slurs, derogatory comments, or insults.”
Lawful rules regulating third-party communications with outside parties:
- Employees are not “authorized to speak to any representative of the print and/or electronic media about company matters” unless designated to do so by human resources, and must refer all media inquiries to the company media hotline.
- “[A]ssociates are not authorized to answer questions from the news media…When approached for information, you should refer the person to [the Employer’s] Media Relations Department.”
- [A]ll inquiries from the media must be referred to the Director of Operations in the corporate office, no exceptions.”
Unlawful rules banning employee use of logos, copyrights or trademarks:
- “The company strives to anticipate and manage crisis situation in order to reduce disruption to our employees and to maintain our reputation as a high quality company. To best serve these objections, the company will respond to the news media in a timely and professional manner only through the designated spokesperson.”
- “Events may occur at our stores that will draw immediate attention from the news media. It is imperative that one person speaks for the Company to deliver an appropriate message and to avoid giving misinformation in any media inquiry. While reporters frequently shop as customers and may ask questions about a matter, good reporters identify themselves prior to asking questions. Every … employee is expected to adhere to the following media policy: … 2. Answer all media/reporter questions like this: “I am not authorized to comment for [the Employer] (or I don’t have the information you want). Let me have our public affairs office contact you.’”
Lawful rules protecting employer logos, copyrights or trademarks:
- Do “not use any Company logos, trademarks, graphics, or advertising materials” in social media.
- Do not use “other people’s property,” such as trademarks, without permission in social media.
- “Use of the [the Employer’s] name, address or other information in your personal profile [is banned] … In addition, it is prohibited to use [the Employer’s] logos, trademarks or any other copyrighted material.”
- “Company logos and trademarks may not be used without written consent …”
- “Respect all copyright and other intellectual property laws. For [the Employer’s] protection as well as your own, it is critical that you show proper respect for the laws governing copyright, fair use of copyright material owned by others, trademarks and other intellectual property, including [the Employer’s] own copyrights, trademarks and brands.”
- “DO respect the laws regarding copyrights, trademarks, rights of publicity and other third-party rights. To minimize the risk of a copyright violation, you should provide references to the source(s) of information you use and accurately cite copyrighted works identified in your online communications. Do not infringe on [Employer] logos, brand names, taglines, slogans, or other trademarks.”
I told you these weren’t intuitive, didn’t I? I can almost hear the pages flapping as readers scour their employee handbooks, looking for offending language. What I provided above is by no means an exhaustive list of all policies that might be subject to scrutiny by the NLRB, and unfortunately there are few bright-line rules at play. The General Counsel’s memo provided an explanation of why each of the sample policies was deemed lawful or unlawful. Those explanations are too voluminous to include in this piece, but the crux of the matter is whether, taken in context
, the policy at issue has the effect of dissuading employees from engaging in behavior that is protected by the NLRA. Unfortunately for employers, the NLRA protects a whole host of behavior many find unsavory.
The NLRB is scrutinizing employee handbooks to a degree that simply didn’t exist in years past. In addition, the advent and prevalence of social media has given employees new avenues for engaging in protected concerted activity. No longer is it limited to whispers at the water cooler or shouts at the picket line. Today, it is much more likely to occur on Twitter or Facebook. The technology and the law are rapidly adapting, and employers must do the same.
This content has been prepared for general information purposes only. This information is not intended to provide specific legal advice. Legal advice is dependent upon the specific circumstances of each situation. The information provided cannot replace the advice of competent legal counsel by a licensed attorney in your state.
Benton L. Toups is a partner at Cranfill Sumner & Hartzog LLP and serves as vice-chair of the Employment Law Practice Group. His practice concentrates on representing businesses in all aspects of labor and employment law. A firm believer in the adage that “an ounce of prevention is worth a pound of cure,” Toups counsels employers on day-to-day issues and assists them in developing and implementing policies to avoid employment litigation. To contact Toups, call (910) 777-6011 or email him at [email protected].