As discussed in a prior post , the National Labor Relation Board (NLRB) continues to target certain employee work rules and policies, including employee handbook provisions, as running afoul of the National Labor Relations Act (NLRA). Although the current NLRB has reversed several previous NLRB decisions regarding handbook policies, the line between permissible policies and those found to interfere with and chill employee rights to engage in protected concerted activity remains blurry at best.
In June of 2019, the NLRB Office of General Counsel released an Advice Memorandum which assessed the legality of ten different employee handbook provisions. In analyzing these and similar employer policies, the NLRB typically balances the nature and extent of the potential impact on Section 7 rights (i.e. employees’ rights to engage in protected concerted activity) and the legitimate business justifications associated with the requirements. For employers, however, this balancing creates considerable uncertainty as to what policies will and will not run afoul of the NLRA.
The provisions, along with the determination reached by the NLRB in the Advice Memorandum, are summarized below:
- Confidentiality: “Obtaining unauthorized confidential information pertaining to clients or employees.” This was found to be a lawful confidentiality rule.
- Confidentiality: “. . . all information gathered by, retained or generated by the Company is confidential. There shall be no disclosure of any confidential information to anyone outside the Company without the appropriate authorization. . . nothing in this policy is intended to infringe upon employee rights under Section Seven (7) of the National Labor Relations Act (NLRA).” This rule was found to be unlawfully overbroad, because its definition of confidential information is so broad that it could easily be interpreted to include information regarding wages and working conditions.
- Civility and Disruptive Behavior: “Rude, discourteous or un-businesslike behavior; creating a disturbance on Company premises or creating discord with clients or fellow employees.” This was found to be a lawful civility/disruptive behavior rule.
- Solicitation/Distribution: “Soliciting, collecting money, or distributing bills or pamphlets on Company property by employees during non-working time, including rest and meal periods, is not restricted so long as such activity is in good taste.” This was found to be a lawful solicitation/distribution policy.
- Conduct: “Un-business-like conduct, on or off Company premises, which adversely affects the Company services, property, reputation or goodwill in the community, or interferes with work.” This was found to be a lawful conduct rule.
- Civility and On-Duty Conduct: “Disparaging, abusive, profane, or offensive language (materials that would adversely or negatively reflect upon the Company or be contrary to the Company best interests) and any illegal activities—including piracy, cracking, extortion, blackmail, copyright infringement, and unauthorized access to any computers on the Internet or email—are forbidden.” This was found to be a lawful combination of civility and on-duty misconduct policies.
- Social Media Access: “Company electronic assets may not be used to access these [social media] accounts.” This was found to be a lawful social media access rule.
- Social Media Postings: “Employees should refrain from posting derogatory information about the Company on any such sites and proceed with any grievances or complaints through the normal channels.” This rule was found to be unlawfully overbroad, because a rule prohibiting disparagement of the employer has a significant impact on NLRA rights and concerted criticism of an employer’s employment and compensation practices is central to rights guaranteed by the NLRA.
- Civility in Postings: “Employees may not post any statements, photographs, video, or audio that reasonably could be viewed as disparaging to employees.” This was found to be a lawful civility rule.
- Social Media Postings: “Employees may not post to any on-line forums . . . providing any Company telephone number or extension. Do not create a link from any personal blog, website or other social networking site to a Company website without identifying oneself as an employee of the Company.” The ban on providing the employer’s telephone number was found to be unlawful, because the ban effectively prohibited employees from soliciting customers and/or the public to call the employer to express support for Section 7 activities. The self-identification requirement for social media postings was found to be lawful.
- Personal Cell Phones: “The use of personal cell phones or other mobile devices is prohibited during working hours for personal use, including phone calls, texting and downloading of web content.” This rule was found to be unlawful as it could be read to prohibit cell phone use during break times and lunch, times at which employees have a right to engage in Section 7 communications.