The National Labor Relations Board (“NLRB”) has recently been aggressive in its enforcement of the National Labor Relations Act (“NLRA”) and, in particular, Section 7 of the NLRA, which protects employees’ rights to form or join a union and engage in “protected, concerted activity” regarding wages, hours and other working conditions for their “mutual aid or protection.” The NLRB has also been diligent in trying to protect employees’ rights under Section 8(a)(1) of the NLRA, which prohibits employers from interfering with employees’ Section 7 rights. The NLRA applies to both union and nonunion workplaces. For the past several years, the NLRB has closely examined employee handbook policies to ensure that they do not inadvertently prohibit or “chill” protected Section 7 activity.
On March 18, 2015, the NLRB’s General Counsel, Richard F. Griffin, Jr. issued an extensive memo entitled “Report of the General Counsel Concerning Employer Rules,” which addresses recent handbook policy cases and provides examples of workplace policies that the NLRB believes will “chill” employee activity, as well as examples of those that will pass NLRB muster. The report also addresses handbook rules gleaned from a recently settled NLRB charge against Wendy’s International LLC.
The General Counsel’s memo includes a discussion of policies in the areas of confidentiality, conduct toward co-workers and management, communications with the media, conflicts of interest, photography and recording in the workplace, and the use of intellectual property. Although the NLRB has been scrutinizing handbook policies for some time, this memo provides concrete examples of the NLRB’s views in this area. As reflected in the memo, the difference between a lawful and unlawful policy is often quite a close call.
In light of this guidance, employers should examine their handbooks and employment policies to ensure that they will withstand NLRB scrutiny.