This past week the General Counsel for the National Labor Relations Board published a memo titled “Report of the General Counsel Concerning Employer Rules.” You can download the PDF by following that link.
The report provides an update on the General Counsel’s view of lawful and unlawful employer handbook policies in the areas of confidentiality, professionalism, anti-harassment, trademarks, photography/recording, and media contact rules. The memo provides examples of policies the General Counsel found lawful and unlawful under each area.
The NLRB GC has been actively challenging certain types of employer policies over the past few years as violations of Section 8 of the National Labor Relations Act. Under Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), an employer’s rule may violate Section 8 of the NLRA if employees would reasonably construe the employer rule to prohibit Section 7 activity. Section 7 activities include, among other things, the right for employees to engage in concerted activity with regard to their working conditions by commenting or speaking about them with other employees and third parties.
The GC has been challenging policies with broad prohibitions on things such as social media comments about an employer, broad definitions of confidentiality, and broad prohibitions on contact with media regarding an employer as violations under Section 8. The GC has also actively challenged employer policies that prohibit recording or photography in the work place. This is a much greater concern for employers these days given the fact that seemingly every employee owns a cell phone capable of making an audio recording or taking a photograph.
As a result of the NLRB’s effort, there has been some level of uncertainty as to what language the NLRB would find acceptable in an employer’s policies on these topics under the NLRA and practitioners had been seeking guidance in order to properly advise clients. This memo is the General Counsel’s response to that request.
Employers would do well to review this memo and consult with their attorney to determine whether their policies and procedures should be revised given this new guidance.
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