The National Labor Relations Board (NLRB) has recently released decisions and guidance with potentially significant implications for employee handbooks. These new developments are of mixed weight, and some we expect may eventually be more critical to incorporate than others. Regular review of your handbook by an employment attorney helps ensure that your company is up to date on these and other legal changes.
This update provides a basic overview of these developments, along with our initial thoughts on how to approach these changes. The law in this area is ever changing, so our advice will necessarily evolve to respond to additional guidance and enforcement patterns as they emerge. For right now, though, it is most important for employers to be aware of the NLRB’s increasingly aggressive incursion into your workplace.
The NLRB enforces the National Labor Relations Act (NLRA), the federal law that protects employees’ rights to self-organize, form unions, and bargain collectively. Section 7 also covers “protected concerted activities” ancillary to those rights whether or not within a formal union the employee or the workplace is unionized, including employees’ right to discuss wages or other terms or conditions of employment among one another or with third parties. The NLRA applies to most private companies regardless of whether their workers are unionized or not. This almost certainly includes your company, so NLRA issues are not just for someone else – they’re likely for you.
The NLRA lists “unfair labor practices” in Section 8(a) of the Act, which prohibits an employer from interfering with an employee’s Section 7 rights. While policies or practices explicitly restricting union activity obviously interfere with Section 7 rights, courts have also interpreted the NLRA to make unlawful those policies that, while not explicitly anti-union, nevertheless have a “chilling effect” on employees’ Section 7 activity. The NLRB, in turn, has taken an even more expansive view of the NLRA’s protections, and often sees “employer interference” in even some of the most common (and benign) employer policies. The NLRB can and does penalize employers for merely maintaining policies potentially limiting Section 7 activity, even if the policies are never applied.
Employee Use of Company Email
In the recent case Purple Communications, the NLRB ruled that companies may not prohibit employees from using work email for personal purposes, including potential union-related activity. The decision was ostensibly limited only to employees who have already had access to the company email and did not require employers to provide access to any employee who didn’t already have it or to third parties. Employers, for the time being, can still prohibit personal use during working time if they can offer a legitimate business reason for doing so and the policy is “uniform and consistently enforced.”
The Board left open the possibility that an employer could impose a total ban on non-work use of email, but only upon a showing of “special circumstances” necessary to maintain production or discipline. In practice, though, these “special circumstances” will likely be difficult for most employers to prove, and will probably only be available to remedy problems or abuses that have already occurred. And, of course, arguing over the facts in any particular instance would be disruptive and expensive, even if the employer ultimately “prevails.”
The rule handed down in Purple Communications is now (and is likely to remain) enforceable, meaning most private employers will need to adjust their internet usage policies accordingly. Many employers whose workers routinely use email for work purposes already allow some limited personal use of company email accounts, so any written policies would likely need only minor adjustments. Employers who do not currently allow personal use of company email need to consider what approach permitted by Purple Communications they want to adopt with consideration for their particular business and revise their email policies to comply.
If you’re uncertain whether your policies are lawful in light of new rules, contact employment counsel to discuss potential deficiencies and evaluate your options to prepare workable policies that are likely to survive Board scrutiny. Employers considering disciplinary action against employees for actual, perceived, or suspected abuses of company email or other systems should be mindful of the employee’s (newly discovered) Section 7 rights and discuss their plans with counsel.
Report of the General Counsel
Meanwhile, more fundamentally, the NLRB’s General Counsel recently released a report on employee handbook rules, covering a wide variety of topics including confidentiality, employee conduct toward the company and supervisors, employee conduct toward coworkers, employee interaction with third parties (including the media), employee use of company logos, copyrights, and trademarks, photography and recording, and conflicts of interest. The report, in many ways, responds to calls from the employer community for clarification of its rights and obligations with respect to employee conduct in light of several NLRB decisions (including Purple Communications) that seem to leave the inmates running the asylum that is the modern day workplace. The report, though, provides little solace for already over-regulated businesses.
In offering illustrations of employer confidentiality policies the General Counsel is now considering overbroad (and therefore unlawful), he takes aim at employer rules that, while not explicitly limiting employee discussion of terms or conditions of employment, employ general wording employees might somehow misunderstand as discouraging talking about wages or working conditions. This expanded interpretation of what might constitute an “unfair” confidentiality policy not only demonstrates the GC’s estimation of employees’ intelligence reaching new lows, the suggested replacement language leaves noticeable holes in employers’ confidentiality defenses through which valuable (and validly protectable) intellectual property or employee identifying information could quickly leak. In many ways, the GC’s condescending position on confidentiality provisions has abandoned common sense.
In addressing employee conduct toward the company and supervisors, the GC reiterates the position that rules that can “reasonably” (as defined by the NLRB) be read to prohibit criticism of the employer will be found unlawful. While the GC generously concedes that prohibiting insubordination is not itself unlawful, management must nevertheless tolerate “disrespectful,” “negative,” “rude,” or “inappropriate,” conduct directed at them, and even false statements where they are not knowingly “malicious.” Further, with respect to employee-to-employee conduct, the GC considers overbroad polices directing employees to “show proper consideration for others’ privacy,” or attempting to limit employees from sending “insulting,” “unwanted,” “offensive,” “inappropriate,” “embarrassing,” or “intimidating” emails or comments to fellow employees online. The Board has already demonstrated its willingness to go to extraordinary lengths to protect what, in a normal world, would be intolerable workplace conduct, for instance ordering the reinstatement of employees who engage in profanity-laced, gratuitous invectives against their employers and supervisors.
On the issue of policies regarding third-party communications, the GC labeled overbroad employer policies prohibiting employees from speaking to the media about “company matters” in an attempt to minimize employers’ right to designate a spokesperson to speak on behalf of the company. The GC deemed policies requiring employees to ask company permission before using company “logos, trademarks, graphics, or advertising materials on social media” to overstep employees’ rights to “fair protected use,” yet offered no examples explaining fair use, essentially leaving the question for employees to decide for themselves. Employers may justifiably wonder if they have any authority to control their messaging and branding.
With respect to policies addressing employee conflicts of interest, the report endorsed policies prohibiting a list of specific ethical infractions instead of broad statements generally encouraging ethical practices. But lest employers start believing they may have retained some aspect of control of their workplace, the GC’s report also included a clear intent to further limit employer’s ability to control photography or video recording in the workplace or discipline employees for leaving work early without permission.
The GC’s criticism demonstrates an obvious disregard for the problems of workplace harassment or bullying, or important industry-specific issues like patient privacy or insider trading, all of which represent major sources of liability the policies at issue were likely designed to address. The report shows equally low regard for guidance of the administrative agencies charged with addressing other workplace problems, making compliance with all applicable agency recommendations increasingly difficult, as well as leaving employers in an impossible “damned-if-you-do, damned-if-you-don’t” mess with respect to other legal obligations.
Throughout the report, the GC cites “context” to distinguish strikingly similar language found lawful in one instance but unlawful in another, leaving the justification essentially subjective and ensuring that simply copying suggested language or policies referred to as “lawful” will not ensure compliance with the NLRA.
While awareness of the General Counsel’s positions is important, the guidance itself does not carry the weight of law, and may or may not become enforceable in court. The suggested policies are burdensome for employers from a practical standpoint and might undermine employers’ interests or obligations under other laws, such as nondiscrimination statutes, wage and hour regulations, or intellectual property or privacy laws.
To keep pace with current employment law handbook reviews should be undertaken regularly but should not be viewed in a vacuum. A wide array of considerations, both NLRA and non-NLRA-related, should be weighed by employment counsel familiar with your business and how you operate. Any changes to existing policies employers elect to make as a result of the GC’s guidance should be undertaken carefully and with an eye toward balancing risks in the manner most advantageous to your business.
We continue to stay on top of further developments so please let us know if you have any questions.