Employment Law Alert

Shouldn’t Employers Be Permitted to Prohibit Defamatory or Inappropriate Comments by Employees? New NLRB Report Says No.

March 1, 2015

On March 18, 2015, the General Counsel of the National Labor Relations Board (“NLRB”) released a report which addresses recent NLRB decisions invalidating a variety of handbook rules found in many employer handbooks.  This may come as a surprise to many private employers, who often do not realize that the requirements of the National Labor Relations Act (“NLRA”) apply to non-unionized workplaces.

Why Does The NLRA Apply to Me?

Briefly stated, Section 7 of the NLRA gives all employees, unionized or not, the right to engage in protected “concerted activity,” which includes the right to discuss wages, hours, and other terms and conditions of employment with fellow employees, as well as with nonemployees.  As a result, any employer handbook policy that an employee would reasonably understand to prohibit such discussions violates the NLRA.

Examples of Unlawful Handbook Language

  • Any restriction on discussion of employee information.  Because employees have the right to discuss their wages and other terms and conditions of employment, a policy which prohibits discussion of “employee information” or even “proprietary or confidential information about [the Employer] or associates” is unlawfully overbroad.
  • Broad prohibitions on disclosing “details” about an employer.
  • Overbroad prohibitions about disclosure of confidential information.
  • Rules prohibiting employees from engaging in “disrespectful,” “negative,” “inappropriate” or “rude” conduct towards the employer or management are unlawful, because employees have Section 7 rights to criticize or protest their employer’s labor policies or treatment of employees.  For example, the rule “be respectful to the company, other employees, customers, partners, and competitors” was found to be unlawful” as was “be respectful of others and the Company.”
  • Rules which may infringe upon an employee’s right to  argue and debate with each other about unions, management, and terms and conditions of employment, even if such discussions become contentious.  For example, “don’t pick fights online” was found to be unlawful, as was “show proper consideration for others’ privacy and for topics that may be considered objectionable or inflammatory, such as politics and religion.”
  • Surprisingly, employer policies cannot broadly ban “defamatory” or “inappropriate” communications, as the NLRB found such terms to be ambiguous as to their application to Section 7 activity, depending on their context.
  • Rules which may infringe upon an employee’s right to communicate with the news media, government agencies, or other third parties about wages, benefits, and other terms and conditions of employment.  This implicates company media policies.  For example, a rule which stated that employees are not “authorized to speak to any representative of the print and/or electronic media about company matters” unless designated to do so by Human Resources was found to be unlawful, as “company matters” could reasonably be construed to encompass employment concerns and labor relations.  The rule “all inquiries from the media must be referred to” a particular employee was also found to be unlawful.
  • Rules which restrict employee use of company logos, copyrights, or trademarks; while commercial or business use may be banned, other prohibitions are overbroad.
  • Rules which ban photography or recording in the workplace, as employees have the right to do so in furtherance of their protected concerted activity.
  • Conflict of interest rules which may infringe on an employee’s right to engage in protected activities, which may not be in the employer’s interest.  For example, employers may not prohibit employees from taking “any action” that is “not in the best interest of the employer.”

Lawful Handbook Language

The General Counsel’s report provided some examples of lawful language, which generally involves being more specific with regard to what is prohibited, and using “savings” language where appropriate.  For example, the following rules were found to be lawful:

  • “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.”

The above two rules are permissible because they do not reference information regarding employees or employee terms and conditions of employment, do not define “confidential” overbroadly, and do not, in the opinion of the NLRB, otherwise contain language that would reasonably be construed to prohibit protected communications.

Rules which require employees to be respectful to customers, competitors, and members of the public, but do not mention the company or its management, are permitted.

Narrow media policy rules which prohibit the employee from speaking on behalf of the company, but do not prohibit the employee from speaking to individuals outside the company on their own behalf, are permitted.

Rules requiring employees to respect copyright laws, but allowing fair use of logos and copyrighted materials, are permitted.

Savings Language

Unfortunately the General Counsel’s report did not address whether “savings” or disclaimer language such as “nothing in this policy is intended to prohibit employees from complying with or exercising their rights under any applicable federal state, or local law, or from communicating about wages, hours, or other terms and conditions of their or their co-workers’ employment” would suffice to save an otherwise unlawful policy.  It is clear from the report, however, that context and the specific language of the rule at issue may make the difference in whether the NLRB finds a rule to be unlawful.

Recommendations

Given the broad reach of the recent handbook rulings by the NLRB, and the many policies to which these decisions may apply, all employers should review their handbooks and relevant policies for compliance with the NLRA.  Please feel free to contact any member of our Employment Law Group for assistance.

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