I recently re-reviewed the NLRB General Counsel’s March 18, 2015 Memorandum regarding lawful and unlawful employer policies. I found the Memorandum even more disturbing after my second review. The National Labor Relations Board has been actively reviewing and ruling on the legality of both union and nonunion employers’ employment policies. Most of the rulings deal with whether the policies violate employees’ Section 7 rights under the NLRA and focus largely on the following topics:
- Rules regarding confidentiality;
- Employee conduct toward the company and supervisors;
- Employee conduct toward coworkers;
- Employee interaction with third parties;
- Restrictions on the use of company logos, copyrights, and trademarks;
- Restrictions on taking pictures and videos in the workplace;
- Restrictions on employees leaving work;
- Conflict of interest policies; and
- Social media policies
The Memorandum analyzes employer policies that have come under scrutiny and divides them into those found unlawful and those found lawful along with an explanation of how it came to its conclusion. Some of the language the NLRB has found unlawful may disturb you. Below are a few examples:
- “Be respectful to the company, other employees, customers, partners, and competitors.”
- Do “not make fun of, denigrate, or defame your co-workers, customers, franchisees, suppliers, the Company, or our competitors.”
- “It is important that employees practice caution and discretion when posting content on social media that could affect the Employer’s business operation or reputation.”
- Do not make “insulting, embarrassing, hurtful or abusive comments about other company employees online,” and “avoid the use of offensive, derogatory, or prejudicial comments.”
- “Material that is fraudulent, harassing, embarrassing, sexually explicit, profane, obscene, intimidating, defamatory, or otherwise unlawful or inappropriate may not be sent by e-mail.”
- “All inquiries from the media must be referred to the Director of Operations in the corporate office, no exceptions.”
- Do “not use any Company logos, trademarks, graphics, or advertising materials” in social media.
- “Taking unauthorized pictures or video on company property” is prohibited.
- “Failure to report to your scheduled shift for more than three consecutive days without prior authorization or ‘walking off the job’ during a scheduled shift” is prohibited.
- “The disclosure of this handbook to unauthorized parties is prohibited.”
The above polices are only a few examples, and I highly recommend that you review the entire Memorandum with a view toward revising your Employee Handbook. Increasingly, the NLRB is doing their review of union and nonunion employer policies BEFORE the company does.
Our firm has reviewed hundreds of employee handbooks to help employers comply with the modern day maze of laws and regulations. If we can help you, please let us know.