Are Your Employment Policies Legal Under Current Federal Labor Law?
The National Labor Relations Board (“NLRB”) has recently issued several decisions which directly impact various written policies typically found in employment handbooks. The NLRB’s General Counsel has also issued a memorandum which provides guidance on several issues that may impact your policies. Importantly, these decisions apply to all employers regardless of whether the employees are unionized. Because of the NLRB’s actions, a previously valid policy may now be illegal under federal labor law. This is a good time to review your policies to make sure they are compliant.
Employees’ Section 7 Rights
Much of the guidance from the NLRB focuses on protecting employees’ “Section 7 rights” under the National Labor Relations Act (the “Act”). In general, employees have the right under Section 7 to discuss wages, hours and other terms and conditions of employment. The common theme to recent NLRB rulings is that broadly worded employment policies that improperly place restrictions on employees’ ability to discuss wages, hours, and terms and conditions of employment are unlawful.
Employee Use of Company E-Mail and Monitoring Employee E-Mail
The NLRB will presume that employees who have rightful access to their employer’s e-mail system in the course of their work also have a right to use the e-mail system to engage in Section 7 protected communications on non-working time. This means that if your employees have access to the e-mail system, they can use the e-mail system to discuss union-related issues, so long as they do so on non-working time. Employers can in unusual circumstances impose some restrictions, such as a ban on sending mass e-mails. But, the employer has the burden of showing that limitations are necessary (for example, that mass e-mails disrupt the server) and that limitations are consistently and uniformly enforced.
The NLRB has also provided some guidance concerning an employer’s right to monitor employees’ use of the e-mail system. Employers are allowed to monitor their computers and e-mail systems for legitimate management reasons, such as ensuring productivity and preventing e-mail use for purposes of harassment or other activities that could give rise to employer liability. In monitoring employee e-mail, it is critical that the employer not increase its monitoring activity during an organizational campaign or focus its monitoring efforts on protected conduct or union activities.
Confidentiality Provisions in Policies
Confidentiality provisions in policies are unlawful if the policy either prohibits, or the employees reasonably understand that it prohibits, the employees from discussing wages, hours, and other terms and conditions of employment. For example, the following policy is troublesome to the NLRB: “Do not discuss customer or employee information outside of work, including phone numbers and addresses.” With this policy, the use of the term “employee information” is overly broad and could include employee’s wages, hours, and terms and conditions of employment.
Confidentiality provisions with regard to employer investigations can also create issues. The NLRB has held that an employer cannot automatically request that employees involved in a workplace investigation not discuss the matter with their co-workers while the investigation is ongoing. Instead, the Board has now placed the burden on the employer to justify any prohibition on employees discussing an ongoing investigation. This justification must be provided on a case-by-case basis.
Employee Conduct Policies
The NLRB has also found fault with overly broad policies that are meant to address employee conduct towards the company, supervisors and co-employees. For example, policies which require employees to be “respectful” to the company and supervisors are too broad. Similarly, a policy which required employees to represent the employer in the community “in a positive and professional manner in every opportunity” can be unlawful, because criticizing the company can be a protected right under Section 7.
Similarly, policies which ban “negative” or “inappropriate” discussions among its employees can be overly broad and unlawful. Employees have a Section 7 right to argue and debate with each other about unions, management and their terms and conditions of employment. Therefore, a policy which simply states that employees should not send “unwanted, offensive or inappropriate” e-mails to each other, without any examples or context, is vague and overly broad.
Policies Regarding Employee Interaction with Third Parties
Generally, employees have a Section 7 right to communicate with the media, government agencies and other third parties regarding their terms and conditions of employment. Policies which restrict this right can be overly broad and unlawful. For example, a policy which states that employees cannot talk to the media about “company matters” is overly broad. The phrase “company matters” could be construed to include employment concerns that the employee may have. In other words, the policy creates the impression that employees cannot speak to a third party on their own behalf. According to the NLRB, the policy should clearly indicate that the restriction applies to speaking out on behalf of the company and does not apply to employees speaking out on their own behalf.
Social Media Policies
The NLRB will examine whether a social media policy is too broadly worded. For example, prohibiting employees from making disparaging comments about the company and prohibiting statements that are “disrespectful,” “inappropriate” or “unprofessional” can be considered too broad. The NLRB’s position is that policies must be more specific about the types of comments or conduct that is prohibited. For example, according to the NLRB’s General Counsel, the following language does a better job of eliminating ambiguity in the policy:
The employee must “avoid posts that could be viewed as malicious, obscene, threatening or intimidating or prohibitions of harassment or bullying or offensive posts meant to intentionally harm someone’s reputation or could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.”
- Rules Restricting Employees’ Use of Company Logos, Copyrights and Trademarks
Policies cannot prevent employees’ protected use of employer intellectual property. More specifically, employees have the right to use the employer’s name and logo on picket signs, leaflets and other similar types of protest material. Therefore, a policy which simply states that employees cannot use “any Company logos, trademarks, graphics, or advertising materials” is overly broad.
- Rules Restricting Photography and Recording
Policies that prevent employees from taking pictures and recordings on their non-work time are deemed to be overly broad. If the employer wants to ban photography or recordings, the employer must have a legitimate reason for doing so and the policy must be limited to advancing that legitimate reason.
- Rules Restricting Leaving Work
Policies which broadly prohibit employees from walking off the job can be unlawful where the policy would prevent the employees from engaging in a protected strike or a walkout.
- Rules Regarding Conflict-of-Interests
A policy which states that employees may not engage in “any action that is not in the best interest” of the employer is overly broad and unlawful. This type of language could be construed to prevent employees from engaging in various Section 7 rights, such as the right to protest the employer’s actions or the right to solicit support for the union during non-work time.
Some of the rulings discussed above may be appealed. Others may be reversed when new Board members are appointed. For the present, however, employers seeking to avoid unfair labor practice charges should examine their policies and amend them as necessary.