On March 18, 2015, The National Labor Relations Board (“NLRB”) Office of General Counsel issued Memorandum GC15 -04 addressing lawful and unlawful employee handbook policies.
The memorandum and its guidance apply to both non-unionized companies and unionized companies. But whether an employer needs to take additional actions in light of the memorandum will require a close review of the employer’s existing policies.
The General Counsel for the NLRB’s guidance memorandum provides examples of lawful and unlawful employee handbook rules. These examples include policies related to the areas of confidentiality, professionalism/employee conduct, use of company logos, copyrights and trademarks, photography and recording, and interaction with the media and other third parties.
The basis for scrutinizing these policies is the alleged infringement of the right of employees to engage in “protected concerted activity” under Section 7 of the National Labor Relations Act (“Section 7”). Section 7 activity includes the right to engage in union organizing, as well as the right to discuss, challenge, question, and advocate changes in wages, hours, and other terms and conditions of employment in both unionized and non-unionized work environments. A majority of the current NLRB rulings will deem an employee handbook provision to violate Section 7 if it specifically prohibits Section 7 activity or if “employees would reasonably construe” the rule as prohibiting such activity.
It is this “reasonably construe” language that has resulted in many common employee handbook provisions being declared unlawful by the majority of the current NLRB.
Over the past few years, the NLRB and its General Counsel have aggressively scrutinized many frequently used employee handbook provisions — often with seemingly conflicting results. As a result, the guidance offered by the memorandum can be frustrating to try to reconcile with reasoning for determining whether a policy violates Section 7. For example, a policy stating that “[e]ach employee is expected to work in a cooperative manner with management/supervision, coworkers, customers and vendors” was considered to be lawful. But a policy stating “[b]e respectful of others and the Company” was determined to violate Section 7.
As demonstrated by the example, the line between lawful and unlawful is far from clear. Moreover, because many of the examples appear to be excerpted from larger policies, tweaking one or two words or adding additional context and clarification to what would be an otherwise overbroad policy can mean the difference between lawful or unlawful under Section 7.
Therefore, employers should compare their current handbook policies to those addressed by the general counsel (or engage legal counsel to conduct a review). If any of the policies appear likely to be found unlawful under the examples in the memorandum, employers should contact their labor and employment counsel to address the potential deficiencies and draft workable policies that are more likely to survive the General Counsel’s Office’s scrutiny.
CowanPerry represents employers throughout the New River Valley and Southwest Virginia, from offices located in Roanoke and Blacksburg. For more information or follow up questions, contact a member of our employment team: Jim Cowan at jcowan@cowanperry.com, David Perry at dperry@cowanperry.com, Brian Wheeler at bwheeler@cowanperry.com, or Eric Chapman at echapman@cowanperry.com.