National Labor Relations Board General Counsel Issues Memorandum on Employee Handbooks

By Rudman Winchell Attorney Matthew M. Cobb

Earlier this year, on March 18, 2015, the General Counsel for the National Labor Relations Board (“NLRB” or “Board”) issued a memorandum that highlighted several recent Board decisions concerning employee handbook provisions. Most of the decisions discussed in the memorandum reflect the Board’s recent efforts to ensure that employer policies do not constrain the right of employees to engage in protected concerted activity under Section 7 of the National Labor Relations Act. Several employee handbook provisions discussed in the memorandum may be of particular interest to employers:

Confidentiality. The General Counsel observed that under Section 7, employees have a right to discuss wages, hours, and other terms and conditions of employment. As a result, handbook provisions that specifically prohibit employee discussions of terms and conditions of employment were found to be invalid. Likewise, overly broad restrictions on sharing or discussing “employee” or “personnel information,” without clarification, could reasonably be viewed as restricting Section 7 rights and therefore invalid according to the Board.

Employee Conduct Toward Employer or Supervisor. Several NLRB decisions concluded that policies prohibiting employees from engaging in disrespectful, negative, rude, or inappropriate behavior towards their employers or members of management, without clarification or context, were usually unlawful. The rationale behind these decisions was that employees have a Section 7 right to criticize or protest their employer’s labor policies or treatment of employees and such broad prohibitions on these types of behavior could reasonably be viewed as encompassing these rights. The General Counsel was careful to note, however, that employee handbooks could lawfully include policies against insubordination or policies that encourage and promote professionalism and courtesy in interactions with others.

Conduct Toward Fellow Employees. The NLRB found some policies prohibiting “insulting, embarrassing, hurtful or abusive comments” about other employees and policies against the use of “offensive, derogatory, or prejudicial comments” about other employees to be invalid. In these decisions, the NLRB cited the rights of employees under Section 7 to publicly discuss their terms and conditions of employment and to criticize their employer’s labor policies as the basis for concluding that employees have a right under the Act to argue and debate with each other about unions, management, and their terms and conditions of employment. The Board reasoned that such discussions may become heated at times, and policies broadly encompassing all rude or negative exchanges between employees could reasonably be viewed as a limitation on their Section 7 rights in this respect.

Social Media. Many of the decisions highlighted in the General Counsel’s memorandum made reference to employee use of social media. For example, with respect to policies concerning employee conduct toward fellow employees, a policy against “picking fights” with other employees on social media was found to be overly broad with respect to employee rights under Section 7 to debate with each other about management or to discuss terms and conditions of employment. Similarly, broad prohibitions against an employee’s non-commercial use of his or her employer’s logo or trademark on social media or otherwise was found to be unlawful. The Board reasoned that such prohibitions could unlawfully prevent employees from identifying their employers in the course of Section 7 activity online or otherwise.

The General Counsel’s memorandum serves as a reminder that the NLRB continues to closely scrutinize employee handbook provisions for potential infringements of Section 7 rights. Employers should carefully consider whether any broad prohibitions against certain employee activities in employee handbooks could reasonably be viewed as implicating such rights.

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