Thanks very much to David Phippen from our Metro D.C. Office for letting me get some depositions taken this week and allowing me to republish his analysis here.
As we have previously reported, the National Labor Relations Board in recent years has put employee handbooks and policy manuals under a magnifying glass, searching for any provision that might, in its view, violate the National Labor Relations Act. Last week, apparently after hearing from labor law practitioners that guidance was needed, NLRB General Counsel Richard F. Griffin, Jr., issued a report attempting to explain several years of Board decisions and positions taken by his office. His stated goal was “to offer guidance on . . . this evolving area of labor law, with hope that it will help employers to review their handbooks and other rules, and conform them, if necessary, to ensure that they are lawful.”
Unfortunately, because the decisions and positions have often been inconsistent, the guidance provides few bright lines for employers to follow to ensure that their rules are lawful. But, perhaps worst of all, the General Counsel’s guidance follows the current Board majority view and, at least implicitly, largely rejects a balanced interpretation of the NLRA that gives sufficient weight to employers’ interests in managing their workplaces, protecting employees, and protecting confidential information and intellectual property.
Prudent employers will have their handbooks and policies reviewed by an experienced labor lawyer who understands Section 7 and has developed a keen appreciation for the direction in which the Board and the General Counsel are moving.
All employers, especially non-union employers not used to dealing day-to-day with the NLRA, should take note and get their employee handbook rules and policies in line with the GC’s expressed views. Employers found to be in violation can be ordered to rescind any unlawful rules and rescind and remedy any disciplinary action based on the rules. An unlawful rule can also be ground for the Board to set aside an NLRB election vote against union representation and direct a re-run election, thus giving the union another chance to win.
CATEGORIES OF RULES ADDRESSED IN THE REPORT
The General Counsel’s report addresses the following types of workplace rules:
- confidentiality
- conduct toward the employer and management
- conduct toward co-workers
- communications and interaction with outside parties and the media
- use of logos, copyrights or trademarks
- photography and recording in the workplace
- leaving work or premises, or walking off the job
- conflicts of interest
OVERVIEW OF THE GENERAL COUNSEL'S POSITION
The General Counsel expansively interprets what constitutes unlawful "interference" with the Section 7 right to engage in protected concerted activity. He generally views employer rules as unlawful when, in his view, an employee “would reasonably” construe a rule as prohibiting any form of protected concerted activity. It is not relevant that there may be no evidence that the policy language in fact restricted any employee's actions, and there is no room for an employer to demonstrate that the GC’s view of how an employee “would reasonably” construe language is incorrect. A rule might be viewed as having a “chilling effect” even if the prohibited behavior is harmful to the employer, co-workers, third parties, or the public, and even if there are less-harmful ways for employees to dispute and communicate.
Employers found to be in violation can be ordered to rescind any unlawful rules, and to rescind and remedy any disciplinary action based on the rules. An unlawful rule also can be grounds for the Board to set aside a vote against union representation and direct a re-run election, thus giving a union another chance to win.
Given the GC’s perspective, an employee handbook rule generally is unlawful if any employee might interpret it as restricting any form of Section 7 activity, subject to some relatively limited exceptions. Exceptions may exist when the Board or GC views the rule as fostering some employer business interest that the Board or the GC deems “legitimate” and sufficiently weighty to justify some restriction of employee activity that otherwise would be protected.
Employers should also be aware that the GC views Section 7 activity as encompassing the nearly unfettered right of employees to strike, walk out, dispute, criticize, complain, and communicate, by nearly any means or method, and with nearly any content, to co-workers, management, third parties, the media, government officials, and the public, about nearly anything having to do with wages, hours, and other terms and conditions of employment. And even “wages, hours, and other terms and conditions of employment” is a term of art viewed expansively by the GC (for example, in the stated view of the GC it includes certain political activity).
A FEW "SAFE HARBORS" FOR EMPLOYERS?
On a more positive note, the GC’s report suggests that he does not consider certain workplace rules to be unlawful (the Board may or may not agree):
- Rules prohibiting "unlawful" acts
- Rules prohibiting "malicious" defamation
- Rules prohibiting "disparagement" of the "employer's product" (although "disparage" and "employer's product" are interpreted narrowly
- Rules prohibiting "knowingly" false statements
- Rules requiring "respect for" copyright, trademark, and similar laws
- Rules prohibiting disclosure of "trade secrets"
- Rules prohibiting employees from making photographs or recordings during "working time" or of work areas (exceptions apply when the photography/recording is of activity protected by the NLRA, such as documenting health or safety issues, or a strike or work-related protest)
- Rules prohibiting "financial" conflicts of interest
- Rules requiring employees to work during "working time" (CAUTION: "working time" should not be confused with "on-duty time," "company time," shift time," or "time on the clock"; "working time" is the time that an employee is engaged or should be engaged in performing his or her work tasks for the employer)
- Rules prohibiting distribution of literature in "working areas" (CAUTION: "working areas" does not include areas that are used both for working and breaks)
- Rules prohibiting distribution and solicitation during "working time" as defined above
- Rules prohibiting employees from coming into the interior of the workplace for "any reason" during non-working time.
The above list is illustrative and should not be used as a substitute for legal advice on the subject. And just as the Board or the GC sometimes considers the surrounding context of an employee handbook rule’s language to determine its lawfulness (for example, placement of the rule language in a sexual harassment policy), employers are cautioned that an otherwise lawful rule might be found to be unlawful if the context gives it a potentially different meaning.
WHAT WASN'T IN THE REPORT
The General Counsel’s report did not claim to be an exhaustive review, and notably absent is any discussion of union-free statements, employment-at-will statements, binding dispute resolution and arbitration polices, and the newest type of handbook rule in the “interference” mix, an English-only rule, which recently was a matter of first impression before an administrative law judge of the Board. Unfortunately, the GC also does not meaningfully address the effect (if any) of so-called “savings language” in an employee handbook, such as, “Nothing in this handbook should be construed to prohibit any form of Section 7 activity under the National Labor Relations Act and nothing herein is intended to prevent, deter, or interfere with employees in the exercise of any employee rights under the National Labor Relations Act.” These subjects may get attention from the GC or the federal courts in the future.
CONCLUSION
The General Counsel’s report will certainly help employers understand the GC’s position, but employers may not like what they hear. Many employers are confused by what they see as a one-sided interpretation of the law and arguably strained, and often wholly out-of-context, "non-real-world" interpretation of employee handbook rules and other policies. Employers almost universally publish and enforce rules to advance legitimate business goals such as maintaining civil employee relations; providing useful information to employees to avoid lack of “fair notice”; fostering productive, profitable, and safe workplaces; and protecting Company investments in employee training and education, and intellectual property. Private sector employers are now on notice that the GC, when given the opportunity, will scrutinize employee handbook rules for a possible “chilling effect” on employees' exercise of the right to engage in protected concerted activity.
To be in the best possible position to avoid unfair labor practice charges regarding employee handbook rules and other policies, employers should take the following steps, with the assistance of experienced labor counsel:
- Review handbooks, policy manuals, social media policies, work rules, plant rules, and individual employee agreements – including confidentiality and non-disclosure agreements – to determine whether the language “could be” interpreted as interfering with Section 7 activity, and revise as needed
- .Revisions to policies and rules should be made before the employer has knowledge of any union organizing activity. (Changes to policies should be made only after consultation with labor counsel, and this is especially true if the employer is aware of organizing activity.)
- Consider using specific examples of prohibited behavior, and consider a disclaimer or multiple disclaimers (including the “savings language” described above).
- Although this approach has costs, consider dispensing with some general rules that attempt to encompass broad classes of bad behavior. If the behavior is egregious enough, you may be able to deal with it even if you don’t have a written policy.
- In connection with rule-based discipline or discharge of an employee, carefully review the rule before taking the action and consider the potential for an "interference" or “discrimination” claim based on the rule itself or disparate enforcement of the rule even if it is otherwise lawful.
Feel free to contact any member of Constangy's Labor Relations Practice Group, or the Constangy attorney of your choice.
- Partner
Robin has more than 30 years' experience counseling employers and representing them before government agencies and in employment litigation involving Title VII and the Age Discrimination in Employment Act, the Americans with ...
Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act).
Continue Reading
Subscribe
Contributors
- William A. "Zan" Blue, Jr.
- Obasi Bryant
- Kenneth P. Carlson, Jr.
- James M. Coleman
- Cara Yates Crotty
- Lara C. de Leon
- Christopher R. Deubert
- Joyce M. Dos Santos
- Colin Finnegan
- Steven B. Katz
- Ellen C. Kearns
- F. Damon Kitchen
- David C. Kurtz
- Angelique Groza Lyons
- John E. MacDonald
- Alyssa K. Peters
- Sarah M. Phaff
- David P. Phippen
- William K. Principe
- Sabrina M. Punia-Ly
- Angela L. Rapko
- Rachael Rustmann
- Paul Ryan
- Piyumi M. Samaratunga
- Robin E. Shea
- Kristine Marie Sims
- David L. Smith
- Jill S. Stricklin
- Jack R. Wallace
Archives
- October 2024
- September 2024
- August 2024
- July 2024
- June 2024
- May 2024
- April 2024
- March 2024
- February 2024
- January 2024
- December 2023
- November 2023
- October 2023
- September 2023
- August 2023
- July 2023
- June 2023
- May 2023
- April 2023
- March 2023
- February 2023
- January 2023
- December 2022
- November 2022
- October 2022
- September 2022
- August 2022
- July 2022
- June 2022
- May 2022
- April 2022
- March 2022
- February 2022
- January 2022
- December 2021
- November 2021
- October 2021
- September 2021
- August 2021
- July 2021
- June 2021
- May 2021
- April 2021
- March 2021
- February 2021
- January 2021
- December 2020
- November 2020
- October 2020
- September 2020
- August 2020
- July 2020
- June 2020
- May 2020
- April 2020
- March 2020
- February 2020
- January 2020
- December 2019
- November 2019
- October 2019
- September 2019
- August 2019
- July 2019
- June 2019
- May 2019
- April 2019
- March 2019
- February 2019
- January 2019
- December 2018
- November 2018
- October 2018
- September 2018
- August 2018
- July 2018
- June 2018
- May 2018
- April 2018
- March 2018
- February 2018
- January 2018
- December 2017
- November 2017
- October 2017
- September 2017
- August 2017
- July 2017
- June 2017
- May 2017
- April 2017
- March 2017
- February 2017
- January 2017
- December 2016
- November 2016
- October 2016
- September 2016
- August 2016
- July 2016
- June 2016
- May 2016
- April 2016
- March 2016
- February 2016
- January 2016
- December 2015
- November 2015
- October 2015
- September 2015
- August 2015
- July 2015
- June 2015
- May 2015
- April 2015
- March 2015
- February 2015
- January 2015
- December 2014
- November 2014
- October 2014
- September 2014
- August 2014
- July 2014
- June 2014
- May 2014
- April 2014
- March 2014
- February 2014
- January 2014
- December 2013
- November 2013
- October 2013
- September 2013
- August 2013
- July 2013
- June 2013
- May 2013
- April 2013
- March 2013
- February 2013
- January 2013
- December 2012
- November 2012
- October 2012
- September 2012
- August 2012
- July 2012
- June 2012
- May 2012
- April 2012
- March 2012
- February 2012
- January 2012
- December 2011
- November 2011
- October 2011
- September 2011
- August 2011
- July 2011
- June 2011
- May 2011
- April 2011
- March 2011
- February 2011
- January 2011
- December 2010
- November 2010
- October 2010