Articles

Check Your Policies - They May be Unlawful

Date: March 23, 2015

By Jennifer Jackman

On March 18, 2015, the National Labor Relations Board’s (“NLRB”) General Counsel issued a Memorandum with the intention of providing guidance to employers as to employment policies the NLRB considers unlawful.  This Memo is extensive and covers many policies you likely have in your employee handbook.  Many employers incorrectly believe that the National Labor Relations Act (“the Act”) does not apply to their organization if they do not have a union.  To be clear, unless your organization falls within a few very limited exceptions, you should assume that your business or organization is covered by the Act which covers condominiums, service providers, non-profits and employee-owned businesses.  

The NLRB Memo addresses policies most employers have in their employment manuals including provisions covering confidentiality, social media, employee conduct toward management, employee conduct toward fellow employees, and use of company logos.  Like me, you may be surprised by policies that the NLRB contends are unlawful.  While the NLRB Memo provides more questions than answers, what is clear is that the NLRB’s determination as to lawful vs. unlawful policies is largely determined by the context of the policy and the conduct that is intended to be addressed.  From the NLRB’s perspective, any employee policies which employees might think covers conduct protected under the Act are unlawful.  

For example, the Act prohibits policies that forbid employees from discussing the terms and conditions of their employment such as wages, hours and complaints.  Accordingly, confidentiality and non-disparagement provisions may be overbroad, at least in the NLRB’s view, depending on the context, what conduct is intended to be addressed, and where the policy is found in the manual since the analysis includes “what conduct the employee might think is covered”.   

Another surprising example includes policies addressing employee conduct toward supervisors.  As an employer, you may assume that you have the right to prohibit employees from making false or defamatory statements about the employer or engaging in insubordinate behavior.  Not so, says the NLRB, unless it is clear that the policy does not prohibit “protected concerted criticism of the employer”.  What about policies providing for termination if an employee does not appear for work without prior authorization?  The NLRB says these policies are unlawful if they could be read to include protected strikes and walkouts.  

The NLRB rulings are wide-ranging and sometimes are inconsistent with positions taken by other governmental agencies and interpretations, including the E.E.O.C.  To test your ability to distinguish lawful vs. unlawful provisions (at least according to the NLRB), try to answer the following: (Click here for the Answers.)

Question Policy Lawful/Unlawful?
1. Do not discuss customer or employee information outside of work, including phone numbers and addresses.
2. Do not disclose confidential financial data, or other non-public proprietary company information.  Do not share confidential information regarding business partners, vendors or customers.
3. Employees are prohibited from disclosing all information acquired in the course of one's work.
4. Each employee is expected to work in a cooperative manner with management/supervision, coworkers, customers and vendors.
5. Be respectful to the company, other employees, customers, partners and competitors.
6. Do not make fun of, denigrate, or defame your coworkers, customers, franchisees, suppliers, the Company, or our competitors.
7. Disrespectful conduct or insubordination, including, but not limited to, refusing to follow orders from a supervisor or designated representative is prohibited.
8. Do not make insulting, embarrassing, hurtful, or abusive comments about other employees online and avoid the use of offensive, derogatory or prejudicial comments.
9. Do not send unwanted, offensive or inappropriate emails.
10. No use of racial slurs, derogatory comments, or insults.
11. Employees are not authorized to answer questions from the news media.  When approached for information, you should refer the person to the media relations department.
12. Company logos and trademarks may not be used without written consent.
13. Employees are prohibited from wearing cell phones, making personal calls, or viewing and sending texts while on duty.
14. Entering or leaving the company property without permission may result in discharge.
15. Failure to report to you scheduled shift for more than 3 consecutive days without prior authorization is prohibited.

The above test uses actual examples cited in the NLRB Memo.  The NLRB Memo is expansive and encompasses numerous policies routinely adopted by employers including:

  • Confidentiality Provisions
  • Employee Conduct Provisions
  • Social Media Policies
  • Anti-Harassment Policies
  • Third Party Communication Policies
  • Restrictions on use of employer logos, copyrights and trademarks
  • Restrictions on Use of Photography and Recording in the workplace
  • Attendance policies
  • Conflict of Interest policies

Employers should review the NLRB Memo and compare it to their own policies and when in doubt, consult legal counsel to ensure that their provisions comply with this new guidance.