NLRB Guidance Further Defines Permissive Employer Handbook Rules

The NLRB’s General Counsel recently issued a report further defining the limitations on an employer’s ability to enact workplace rules which tend to interfere with an employee’s Section 7 rights under the National Labor Relations Act. Section 7 rights generally entitle employees to self-organize, form or join a labor organization, bargain collectively, and engage in other concerted activities for the purpose of collective bargaining, as well as the right to refrain from such activities. The report analyzes real life examples of employer rules the NLRB has assessed to determine whether the rules interfere with the employees’ rights and provides insight into the types of policies that the NLRB is likely to uphold. Analyses of challenged work place rules are reviewed in the full context in which the issue surrounding the rule arose; the NLRB guidance states that it will not read employer rules in isolation to determine their legality. Relying on previously litigated handbook provisions for guidance, the NLRB nonetheless identifies a number of handbook rules typically deemed unlawful. Common characteristics among unlawful employer rules include use of overbroad phrases such as “inappropriate” or “negative”; blanket restrictions on certain types of conduct; and failure to provide any definition or examples of the conduct the employer seeks to prohibit. By contrast, lawful employer rules tend to clarify broad statements, define vague terms, provide specific examples and use careful language that would not cause an employee to reasonably interpret the rule to prohibit Section 7 activity. For example, while a work rule that requires the employee to “be polite” may be overbroad, a rule prohibiting unprofessional behavior while performing company business with company clients may be more likely to be upheld. The General Counsel’s report also focuses on areas such as confidentiality of information, professionalism, anti-harassment, trademark, photography and recording, leaving work and conflict of interest for illustrative purposes. Of particular note is the attention given to the recent Wendy’s International LLC settlement, wherein a significant number of Employer policies were set aside as unlawful based on the failure to narrowly tailor prohibited conduct. The settlement in this case clarified these employer rules by providing express examples such as limiting the use of company logos for non-commercial purposes and expressly excepting behaviors which involve Section 7 activities. The NLRB’s report demonstrates the care with which an employer’s handbook must be crafted to avoid Section 7 challenges. Employers should reevaluate their current handbook rules in light of guidance contained in this report. For more information about crafting lawful employer rules, or if you have any questions about the NLRB’s recent guidance, please contact James J. McGovern III, Esq. Director of the Labor Law Practice Group, at 973.535.7122, jmcgovern@genovaburns.com, or Nicole Leitner, Esq., at 973.387.7897, nleitner@genovaburns.com.