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March 27, 2015

NLRB General Counsel Issues Guidance on Workplace Rules

On March 18, 2015, the General Counsel of the National Labor Relations Board (the “NLRB”) released a detailed report (the “Report”) analyzing the lawfulness of workplace rules under the National Labor Relations Act (the “Act”). The Report focuses on various categories of workplace rules and provides specific examples of language that has been found to be both lawful and unlawful under the Act. A copy of the Report may be found here

Section 7 of the Act provides all employees, regardless of union membership, with the right to engage in concerted activities for the purpose of mutual aid or protection, among other rights. Section 8(a)(1) of the Act makes it unlawful for an employer to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights. The NLRB has held that the mere maintenance of a work rule may violate Section 8(a)(1) of the Act if the rule has a chilling effect on employees' Section 7 activity. While rules that explicitly restrict employees from engaging in protected concerted activity would obviously run afoul of the Act, the NLRB has also found workplace rules to be unlawful if: 1) employees would reasonably construe the rule's language to prohibit Section 7 activity; 2) the rule was promulgated in response to union or other Section 7 activity; or 3) the rule was actually applied to restrict the exercise of Section 7 rights. The NLRB’s General Counsel noted that most violations of the Act occur in the first scenario, and that even well-intentioned employers may violate the Act if their workplace rules are framed too broadly.

The Report analyzes the current state of the law with respect to the following categories of workplace rules: confidentiality, professionalism, anti-harassment, trademark, photography/recording, media contact, work stoppages, and conflicts of interest.

Confidentiality

Employers may maintain broad prohibitions against their employees disclosing “confidential” information. However, employers must be mindful that they cannot prevent employees from disclosing "employee" or "personnel" information, and cannot prohibit employees from discussing their terms and conditions of employment, including their wages or salary.

Professionalism

Employers may maintain rules requiring employees to be respectful and professional to coworkers, clients, or competitors. Employers may also maintain rules prohibiting conduct that amounts to insubordination. However, employers must be careful not to limit their employees’ right to criticize or protest the employer’s labor policies or treatment of employees. Therefore, a rule that prohibits employees from engaging in "disrespectful," "negative," "inappropriate," or "rude" conduct towards the employer or management, absent sufficient clarification or context, will usually be found to be unlawful.

Anti-harassment

Employers may maintain rules prohibiting harassment in the workplace, however, anti-harassment rules cannot be so broad that employees would reasonably read them as prohibiting vigorous debate or intemperate comments regarding Section 7 protected rights. A broad ban on “negative” or “inappropriate” discussions amongst employees will not be lawful under the Act.

Trademark

Employers may restrict employees from using their trademarks in a manner that violates copyright or other intellectual property laws. However, employers cannot prohibit employees from generally using the company’s name and logo on picket signs, leaflets, and other protest material.

Photography/Recording

Employers cannot prohibit employees from taking photographs or making recordings in furtherance of their protected concerted activity. Employers seeking to promulgate a workplace rule restricting employees from using cameras or other recording devices must be able to demonstrate that the rule is narrowly tailored so as not to be reasonably construed as an infringement on employees’ Section 7 rights.

Media Contact

Employers may lawfully control who makes official statements for the company, but employers must be careful not to promulgate rules that may reasonably be read to ban employees from communicating with the news media, government agencies, and other third parties about wages, benefits, and other terms and conditions of employment.

Work Stoppages

Employers may maintain rules regulating when employees can leave work, provided such rules make no mention of "strikes," "walkouts," "disruptions," or the like, such that employees will reasonably understand the rule to prohibit them only from leaving their posts for reasons unrelated to protected concerted activity.

Conflicts of Interest

Employers may maintain rules prohibiting employees from engaging in activities that are in conflict with the employer’s legitimate business interests. Employers must be careful not to prohibit employees from engaging in concerted activity to improve their terms and conditions of employment, even if that activity is in conflict with the employer's interests, such as protesting in front of the company or organizing a boycott.

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Takeaway for Employers

Section 7 of the Act confers rights upon both union and nonunionized workers. Every employer must therefore be careful in promulgating workplace rules to ensure that they are specifically tailored and appropriately limited so as not to create a chilling effect on employees' Section 7 activity. We encourage employers to contact us for help in drafting lawful workplace rules.