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Employee Handbook Guidance from the National Labor Relations Board

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As union membership continues to fall nationwide, the NLRB seems to be more closely monitoring company employment practices and policies. The Board is on the lookout for policies that could deter non-union employees from engaging in activities protected by Section 7 of the National Labor Relations Act.

What is Section 7?

Section 7 protects employee rights to engage in activities intended to improve their pay and working conditions. Employer rules which can be reasonably construed by employees as preventing them from pursuing better pay and working conditions are considered to violate the National Labor Relations Act (NRLA).

The Board’s Latest Action

Earlier this year, the NLRB’s General Counsel issued a guidance memorandum regarding employee handbook policy provisions it believes are unlawful. Topics included the following:

  • Confidentiality;
  • Professionalism;
  • Anti-harassment;
  • Trademarks;
  • Photography/recording; and
  • Media contact.

Example A–Confidentiality

Under the guidance, a policy prohibiting employees from discussing work matters with no business reason would be considered unlawful under Section 7. Similarly, a policy stating that non-public information cannot be shared would also be unlawful. The problem with these provisions, according to the guidance, is that they are too broad and may be construed in different ways. There may be work matters or non-public information that can legitimately be discussed by employees under Section 7 of the Act, so a general prohibition is inconsistent with those Section 7 rights.

Example B–Employee Conduct Rules

The guidance states a rule telling employees not to pick fights online would be considered unlawful because its broad language might be construed as prohibiting an employee from having what could become a heated conversation with a fellow employee. Pay and working conditions are topics, afterall, subject to high emotion and even outright anger.

Example C–Photography, Recordings, or Personal Electronic Devices

Another example in the guidance involves a blanket ban on the use of cameras, tape recorders, cell phones, and other similar devices in the workplace. The guidance explains that a broad-based ban would be illegal because it could dissuade employees from recording unfair labor practices.

The Rule of Thumb

The general rule of thumb in avoiding Section 7 issues is to make sure your company policies are not so overly broad as to invite a wide array of interpretations. The rules should be narrowly and specifically constructed so that employees know exactly what is being required or prohibited. That said, make sure you are not narrowly and specifically describing behavior that an employee may undertake in furtherance of improvements in pay and/or working conditions.

Creative Business Lawyers® are well-versed in the federal and state laws that apply to businesses, including the National Labor Relations Act. Make an appointment with a Creative Business Lawyer today to discuss any questions you have about labor contracts, company policies, or to schedule a LIFT Start-Up Session,™ which includes the employment structuring, financial, and tax systems you need for your business.

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