March 18, 2015 – The General Counsel of the National Labor Relations Board (“NLRB”) today released a 30-page report “concerning recent employer rule cases.” The report discusses a variety of provisions in employee handbooks that have led to complaints being filed with the NLRB, such as rules regarding confidentiality, statements about the employer, conduct toward supervisors and coworkers, communications with the media and other third parties, use of audio and video recording devices in the workplace, and leaving the workplace without authorization. (The report also addresses employee use of the employer’s trademarks and copyrights; this aspect of the report is discussed in a separate post.)
The report vividly illustrates the difficulty of predicting whether the NLRB will construe an employer’s challenged policy as violating the National Labor Relations Act (the “Act”). Employers should have their employee handbooks and other written policies carefully reviewed by a knowledgeable labor and employment lawyer.
The General Counsel emphasized in the report that “the law does not allow even well-intentioned rules that would inhibit employees from engaging in activities protected by the Act.” Sections 7 and 8 of the Act state that an employer commits an “unfair labor practice” by interfering with employees’ exercise of their rights “to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…”
The NLRB has held that an employer violates the Act by enacting a workplace rule that has a “chilling effect” on employees’ protected activities. Rules that do not expressly forbid protected conduct violate the Act if “employees would reasonably construe” the rule as prohibiting such conduct. The report analyzes several common handbook provisions to determine the extent to which each can be viewed as chilling protected activities.
Some of the matters discussed in the report are generally noncontroversial – e.g., the well-established rules that employers cannot prohibit workers from discussing their wages, hours, or other working conditions or from criticizing the employer. But even in in these areas, the rules cited in the report demonstrate the challenges inherent in crafting policies that protect an employer’s legitimate interests while not being “reasonably construed” by employees as interfering with their federally-protected rights.
For instance, a rule instructing employees to “[d]iscuss work matters only with other … employees who have a specific business reason to know” and forbidding “discuss[ing] work matters in public places” was held unlawful, while a ban on “disclosure of all information acquired in the course of one’s work” was permissible.
The General Counsel explained these seemingly anomalous results by examining the context in which the rules were presented to employees. When a rule “includes phrases or words that, alone, reasonably would be interpreted to ban protected [activity],” if the context makes clear that the rule bans only serious misconduct, or conduct unrelated to the purposes of the Act, the rule will be upheld. By way of example, the report cites the following rule, which was held lawful: “Being insubordinate, threatening, intimidating, disrespectful, or assaulting a manager/supervisor, coworker, customer or vendor will result in discipline.” A rule forbidding “disrespect” toward management would typically be viewed as unlawfully chilling protected criticism of the employer. However, in the Board’s view, because the aforementioned rule was “contained in a larger provision that is clearly focused on serious misconduct, … employees would not reasonably believe this rule to ban protected criticism.” Likewise, the rule described above prohibiting disclosure of information obtained in the course of one’s work appeared in a handbook section addressing conflicts of interest and compliance with SEC regulations. Based on that context, the NLRB concluded employees would not fear that the rule impermissibly barred them from discussing their working conditions.
Other categories of rules discussed in the report further highlight the difficulty of predicting which employer policies would pass muster. The NLRB’s assessments of regulations of employee conduct toward coworkers appear to be particularly difficult to predict. Employees have a right to “argue and debate with each other about unions, management, and their terms and conditions of employment.” According to the report, this right is unlawfully impeded by policies instructing employees not to make “insulting, embarrassing, hurtful or abusive comments about other company employees online,” and to “avoid the use of offensive, derogatory, or prejudicial comments.”
This policy, according to the NLRB, violates the Act:
Material that is fraudulent, harassing, embarrassing, sexually explicit, profane, obscene, intimidating, defamatory, or otherwise unlawful or inappropriate may not be sent by email…
But this one doesn’t:
[U]se of racial slurs, derogatory comments, or insults [is prohibited].
The line between lawful and unlawful policies governing employee communications with the media is equally hard to discern. Compare this policy that the NLRB approved
Events may occur at our stores that will draw immediate attention from the news media. It is imperative that one person speaks for the Company to deliver an appropriate message and to avoid giving misinformation in any media inquiry. While reporters frequently shop as customers and may ask questions about a matter, good reporters identify themselves prior to asking questions. Every … employee is expected to adhere to the following media policy … Answer all media/reporter questions like this: ‘I am not authorized to comment for [the Employer] (or I don’t have the information you want). Let me have our public affairs office contact you.
with this one, that the NLRB struck down
Associates are not authorized to answer questions from the news media … When approached for information, you should refer the person to [the Employer’s ]Media Relations Department.
With respect to the former policy, the report explains that the NLRB “concluded that the prefatory language … would cause employees to reasonably construe the rule as an attempt to control the company’s message, rather than to restrict Section 7 communications to the media. Further, the required responses to media inquiries would be non-sequiturs in the context of a discussion about terms and conditions of employment or protected criticism of the company….”
Finally, the report’s discussion of two categories of rules – those restricting employee photography and recording and those pertaining to leaving work without authorization – raise questions about the Act’s interaction with, and possible preemption of, state laws.
As to photography and recording, the report states that employees have a “right to photograph and make recordings in furtherance of their protected concerted activity, including the right to use personal devices to take such pictures and recordings.” The General Counsel further explained that “a total ban on … photography or recordings” or a rule prohibiting “the use or possession of personal cameras or recording devices” violate the Act if those rules “would reasonably be read to prohibit the taking of pictures or recordings on non-work time.” (Note, though, that the NLRB has struck down bans that are expressly limited to use of electronics “while on duty” on the ground that “employees reasonably would understand ‘on duty’ to include breaks and meals during their shifts, as opposed to their actual work time.”)
The report does not address how its view on an employee’s right to surreptitiously record or photograph the workplace can be, or should be, squared with state laws – such as California’s – requiring “two-party consent” for recording communications. The NLRB has held that it was an unfair labor practice to discipline an employee for secretly recording his supervisor – but expressly based its ruling in part on the fact that the law of the state in which the recording was made did not require two-party consent. At least one state court has held that the state’s two-party consent law was not preempted by the Act – but it is not clear whether the NLRB would agree.
It is similarly unclear how the report’s pronouncements concerning restrictions on leaving work interact with state law concepts. The report states, “[o]ne of the most fundamental rights employees have under Section 7 of the Act is the right to go on strike. Accordingly, rules that regulate when employees can leave work are unlawful if employees reasonably would read them to forbid protected strike actions and walkouts. If, however, such a rule makes no mention of ‘strikes,’ ‘walkouts,’ ‘disruptions,’ or the like, employees will reasonably understand the rule to pertain to employees leaving their posts for reasons unrelated to protected concerted activity, and the rule will be found lawful.”
Despite that caveat, though, the report notes that a rule barring “[f]ailure to report to your scheduled shift for more than three consecutive days without prior authorization or ‘walking off the job’ during a scheduled shift” – with no mention of strikes – was held unlawful because its “broad prohibitions on walking off the job … reasonably would be read to include protected strikes and walkouts.” This ruling appears to fly in the face of established law in virtually every jurisdiction concerning job abandonment and termination for neglect of job duties.
The General Counsel’s report serves as a reminder that employers must proceed cautiously when formulating policies that could conceivably impact rights protected by the National Labor Relations Act.