The National Labor Relations Board's (NLRB) General Counsel issued a long-awaited, 30-page memorandum on Wednesday offering employers guidance on crafting policies and rules that will not be deemed unlawful by the NLRB. This memo is applicable to all employers subject to the National Labor Relations Act (NLRA), regardless of whether they have union-represented employees.
In what General Counsel Richard Griffin deems "an evolving area of labor law," he noted a continuing stream of charges with merit emanating from the NLRB regarding employee handbook rules. The memo outlines the Board's legal stance on section 7 of the NLRA - which protects workers who engage in concerted activity for their mutual benefit - and specifically addresses policies that may be found unlawful if workers would "reasonably construe" them to restrict section 7 activity. The NLRB's continued efforts to strike down such policies as overly broad because they may limit employees' ability to discuss working terms and conditions have created the greatest angst for employers.
This report is divided into two parts. First, the report compares rules that the NRLB found unlawful with rules found to be lawful and explains Board reasoning. This section focuses on the types of rules that are frequently at issue, such as confidentiality rules, professionalism rules, anti-harassment rules, trademark rules, photography/recording rules and media contact rules. The second part of the memo explores handbook rules from a recently settled unfair labor practice charge against Wendy's International LLC. This section of the memo sets forth Wendy's rules that the Board initially found unlawful, and the associated explanation, along with Wendy's modified rules, adopted pursuant to an informal, bilateral Board settlement agreement, which the Office of the General Counsel does not believe violate the Act.
The memo provides a road map for employers to follow when reviewing employee handbook policies to ensure compliance. If you have not reviewed your handbook policies recently, now is the time.