Does your employee handbook prohibit employees from “discussing customer or employee information” outside of work? Does it forbid employees from sending “unwanted, offensive or inappropriate” emails? If so, some changes may be in order. These policies are unlawful, according to a sweeping report recently issued by the General Counsel of the National Labor Relations Board (the “Board”). In great detail, the 30-page report sets out the Board’s position on a variety of common employee handbook policies on topics such as confidentiality, professionalism, and the use of personal electronic devices at work. Employers will not find much to like. The Board takes an expansive view of an employee’s right to engage in concerted activity and deems unlawful even well-intentioned work rules that might infringe upon that right.
The report focuses on work rules and policies that, in the Board’s view, “employees would reasonably construe” to prohibit protected concerted activity under Section 7 of the National Labor Relations Act (NLRA). With an emphasis on how a rule may be interpreted, rather than on the plain text of the rule, the Board has cast a wide net. The message is clear: even a policy that seems benign will not be acceptable if an employee might reasonably understand it to limit Section 7 activities. On the plus side for employers, the report offers many specific examples of work rules and policies that are, and are not, acceptable.
Under the NLRA, employees have the right to discuss topics such as wages, hours, and other terms and conditions of employment with their fellow employees and non-employees, including union representatives. As a result, work rules that generally ban the disclosure of “employee” or “personnel” information are unlawful, according to the Board. This is so because such rules, in the Board’s view, could reasonably be construed to restrict Section 7-protected communications, absent any further clarification. Likewise, though an employer may ban disclosure of its own confidential information, a rule prohibiting the disclosure of the information of “another,” without further detail, will not meet with the Board’s approval.
To craft confidentiality provisions that pass muster, the Board recommends omitting any reference to information regarding employees or employee terms and conditions of employment, and defining “confidential” narrowly. Among the examples of acceptable confidentiality rules are the following:
- No unauthorized disclosure of “business secrets” or other confidential information.
- Do not disclose confidential financial data, or other non-public proprietary company information. Do not share confidential information regarding business partners, vendors or customers.
Professionalism and Employee Conduct
The report also discusses handbook rules that govern professionalism and employee conduct. Under the NLRA, employees have a right to argue and debate with each other about the terms and conditions of their employment. Courts have recognized that such discussions may become contentious. Thus, the Board concludes, when an employer bans “negative” or “inappropriate” discussions among its employees, without further clarification, employees may reasonably construe such rules to prohibit discussions and interactions that are protected under Section 7. In practice, this means that a seemingly well-intentioned policy prohibiting employees from making “insulting, embarrassing, hurtful or abusive comments about other company employees,” is unacceptable, in the Board’s view, because it could limit protected criticism of supervisors and managers (also company employees). The same goes for a policy that forbids employees from sending “unwanted, offensive or inappropriate emails,” absent any examples to clarify that it does not encompass Section 7 communications.
On the other hand, when a professionalism rule simply requires employees not to engage in “unprofessional conduct,” but does not mention the company or its management, employees would not reasonably believe that such a rule prohibits Section-7 protected criticism of the company, according to the Board. Thus, the Board concludes that the following prohibitions are lawful:
- Threatening, intimidating, coercing, or otherwise interfering with the job performance of fellow employees or visitors.
- No harassment of employees, patients, of facility visitors.
Photography, Recording, and Personal Electronic Devices
Employees also have a right under Section 7 to photograph and make recordings in furtherance of their protected concerted activity. Again, the Board interprets this right broadly. The Board considers work rules that ban the use of personal cameras or recording devices to be unlawfully overbroad, because such rules could be construed to prohibit employees from taking pictures or recordings on non-work time. By way of example, a rule prohibiting employees from “taking unauthorized pictures or video on company property” is unacceptable because employees could reasonably read such a rule as prohibiting attempts to document health and safety violations, which is a protected concerted activity. Per the report, rules that limit restrictions on personal recording devices to time “on duty” are also unlawful, because employees would understand “on duty” to include breaks and meals during their shifts.
To pass muster, rules regulating employee recording or photography must be appropriately narrow in scope. The context of the rule may also bear upon its appropriateness. For example, the Board has found that in settings where the employer has a well-understood, strong privacy interest (such as a medical office), employees would not reasonably understand a no-photography rule to limit pictures for protected concerted purposes.
The report concludes with an in-depth case study of a 2014 settlement between the Board and Wendy’s International, LLC, which required Wendy’s to modify many of its handbook rules that the Board found to be unlawfully overbroad. The report sets forth in detail the rules the Board found to be unlawful, followed by the acceptable replacement rules. These rules, on topics including social media, confidentiality and conflicts-of-interest, are widely applicable and a must-read for labor law practitioners and human resource professionals.
While employers may not agree with the Board’s positions on work rules, the report at least offers detailed guidance to help companies draft and maintain policies that will survive the Board’s scrutiny. The bottom line: work rules must be sufficiently narrow, and should include specific examples of how they are to be applied, with plenty of context to avoid misinterpretation.