NLRB General Counsel Offers Guidance on Employee Handbooks

Employers need not read the tea leaves anymore about what employee handbook language the National Labor Relations Board (NLRB) general counsel considers to be prohibited. NLRB General Counsel Richard Griffin Jr. put the agency’s cards on the table in a March 18, 2015, report to NLRB regional directors that he said hopes “will be of assistance to labor law practitioners and human resource professionals.”

The general counsel is taking “an expansive view” of language that is prohibited by the National Labor Relations Act (NLRA), according to Steven Swirsky, an attorney with Epstein Becker & Green in New York City. And much of the language hasn’t been approved or disapproved by courts or the board, he added.

Nevertheless, reviewing the report should give HR professionals ideas on whether and how their policies should be changed, Swirsky added. He cautioned that employers “should not cut and paste,” as different companies will have different circumstances.

Unionized and nonunion businesses alike should pay attention. Swirsky said many employers tune out news about the NLRA because they think it applies only to unionized employers. A big reason for this report is to emphasize that the law also applies to nonunion environments, he remarked.

Confidentiality Rules

The following confidentiality rules are unlawful, and thus should not be included in any employee handbook, Griffin said:

• Do not discuss “customer or employee information” outside of work, including “phone numbers and addresses.”
• Do 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 or lawful company policy).
• Never publish or disclose [the employer’s or] another’s confidential or other proprietary information. *Never publish or report on conversations that are meant to be private or internal to the employer.

The first rule has an unlawfully overbroad reference to “employee information,” Griffin explained. The second is overbroad because a reasonable employee would not understand how the employer determines what constitutes a lawful company policy, according to Griffin.

As for the third rule, he said, “While an employer may clearly ban disclosure of its own confidential information, a broad reference to ‘another’s information,’ without further clarification, as in the above rule, would reasonably be interpreted to include other employees’ wages and other terms and conditions of employment” (emphasis in the original). Employees may discuss terms and conditions of employment as a part of their protected concerted activity under the NLRA.

Lawful confidentiality rules include:

• 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 [the employer] is cause for disciplinary action, including termination.
• Do not disclose confidential financial data, or other nonpublic proprietary company information. Do not share confidential information regarding business partners, vendors or customers.

Employee Conduct Rules

Employee conduct rules are common in employee handbooks, but some typical language should be jettisoned, according to the general counsel. Here are conduct rules he considers to be unlawful:

• Be 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 the company's competitors.
• Be respectful of others and the company.
• No defamatory, libelous, slanderous or discriminatory comments about the company, its customers and/or competitors, its employees, or management.

Griffin described these rules as “unlawfully overbroad since employees reasonably would construe them to ban protected criticism or protests regarding their supervisors, management or the employer in general.”

But Swirsky said the board and its general counsel have a tendency to think that the NLRA takes precedence over other laws.

Therefore, some of the report’s conclusions may be ripe for challenge.

For example, Griffin said that “Don’t pick fights online” is an unlawful conduct rule “because its broad and ambiguous language would reasonably be construed to encompass protected heated discussion among employees regarding unionization, the employer’s labor policies or the employer’s treatment of employees.”

On the other hand, if the general counsel doesn’t like this language, why pick a fight with the board?

Lawful conduct rules include:

• 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.
• Being insubordinate, threatening, intimidating, disrespectful, or assaulting a manager/supervisor, co-worker, customer or vendor will result in discipline.

“Although a ban on being ‘disrespectful’ to management, by itself, would ordinarily be found to unlawfully chill Section 7 criticism of the employer, the term here is contained in a larger provision that is clearly focused on serious misconduct, like insubordination, threats and assault,” Griffin said. “Viewed in that context, we concluded that employees would not reasonably believe this rule to ban protected criticism.”

Other Policies

The report also includes examples of prohibited and permitted handbook rules on:

• Employee interaction with third parties.
• Use of company logos, copyrights and trademarks.
• Restrictions on photography and recording.
• Restrictions on leaving work.
• Conflicts of interest.

In addition, the report concludes with language in an employee handbook that the board approved from a settlement with Wendy’s, the fast-food chain. The report, called Report of the General Counsel Concerning Employer Rules, is available at http://www.nlrb.gov/reports-guidance/general-counsel-memos.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.