As we’ve mentioned in previous alerts, even if your workplace has no union employees, it must comply with some of the rules of the National Labor Relations Board (NLRB).
Over the last several years, NLRB policies have changed quite a bit, and recently the NLRB’s Office of the General Counsel issued guidelines for employee handbook policies.
Section 7 of the National Labor Relations Act (NLRA) gives employees the right to “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
The NLRB has held that certain types of conversations, such as those about work conditions, are considered “inherently concerted,” even when the employees aren’t unionized and aren’t thinking of taking any group action.
Recently, the NLRB has become more employer-friendly. For some time, it prohibited any rule that “could be” interpreted as covering Section 7 activity, but it now prohibits only rules that “would be” interpreted to cover Section 7 activity.
Further, ambiguities in rules are no longer interpreted against employers, and general provisions are not automatically interpreted as banning all activities that could conceivably be included.
According to the new guidelines, certainly types of rules are generally lawful. These include:
* rules requiring civility to other employees, customers, etc.
* no-photography and no-recording rules
* rules against insubordination, non-cooperation and conduct that adversely affects operation
* rules against disruptive or disorderly conduct
* confidentiality rules that protect proprietary confidential customer information and documents
* confidentiality rules that prohibit disclosure of employee information obtained from unauthorized use of or access to confidential employee records
* rules against defamation and misrepresentation
* rules banning use of employer logos and other employer intellectual property
* rules requiring that an employee obtain appropriate authorization before speaking on
behalf of the employer
In each case, it is only the lawfulness of the rule itself that is addressed. The specific way a rule is enforced by an employer will still be unlawful if it negatively impacts employees’ Section 7 rights. For example, an employer should not discipline an employee for using the company logo on picket signs.
The guidelines indicate that other types of rules must be carefully evaluated on a case-by-case basis. These include:
* broad conflict-of-interest rules that do not specifically target fraud and self-enrichment
* broad confidentiality rules (i.e., referring to employer’s “business”)
* rules targeting disparagement or criticism of the employer itself
* rules regulating use of the employer’s name
* rules that generally restrict speaking to the media or other party
* rules banning off-duty conduct that might harm the employer
* rules against making inaccurate or false statements
Certain rules are almost always unlawful. These include:
* confidentiality rules regarding wages, benefits and working conditions
* rules against joining outside organizations or outsides organizations that might interfere with work
* rules against voting on matters concerning the employer
Please feel free to contact us if you are an employer who needs help drafting or revising policies, or if you are an employee concerned that your employer may be violating your Section 7 rights.
