Thanks to the National Labor Relations Board (the NLRB), companies need to add employee manuals to the list of things that need spring cleaning. Specifically, the NLRB’s Office of the General Counsel issued a 3/18/2015 report full of examples of how your company’s employee manual likely violates the National Labor Relations Act (NLRA).
For background, any employee – whether in a union or non-union workforce – has rights under Section 7 of the NLRA. These rights generally protect an employee’s right to discuss wages, hours, and other terms and conditions of employment with fellow employees.
With this in mind, the NLRB’s General Counsel’s report can be considered the wind-up for the NLRB’s next round of enforcement directives – going after employers whose employee manuals or handbooks violate the NLRA. And if the NLRB is kicking the tires of your business, it is likely only a matter of time before it gets under the hood.
The full report is available here (NLRB Report of the General Counsel Concerning Employ Policies) and should be thoroughly assessed in relation to your company’s current employee policy manual. I can almost guarantee at least a few provisions in your employee manual likely violate the NLRB’s current understanding of Section 7 rights under the NLRA. However, a two areas of focus that jumped out as troubling are as follows:
Treatment and Handling of Confidential Business Information as a Violation of the NLRA
First, the treatment of the NLRB’s General Counsel towards confidential business information and how it is to be handled by employees will be problematic for most employers. In this regard, the General Counsel explained that
[A]n employer’s confidentiality policy that either specifically prohibits employee discussions of terms and conditions of employment— such as wages, hours, or workplace complaints—or that employees would reasonably understand to prohibit such discussions, violates the Act. Similarly, a confidentiality rule that broadly encompasses “employee” or “personnel” information, without further clarification, will reasonably be construed by employees to restrict Section 7-protected communications … In contrast, broad prohibitions on disclosing “confidential” information are lawful so long as they do not reference information regarding employees or anything that would reasonably be considered a term or condition of employment, because employers have a substantial and legitimate interest in maintaining the privacy of certain business information.
Clear as mud, right? Essentially it appears that the NLRB’s general counsel is trying to carve out two categories of “confidential information: “Business confidential information” that is unrelated to employee and personnel information may be appropriately regulated by employers’ policies and procedures; But policies that proscribe the treatment of “confidential information” involving or touching upon employee or personnel issues that an employer may wish to treat as confidential will likely violate the NLRA.
But this is where employers really need to be concerned: The distinction between what is permissible and what is not is somewhat anemic to begin with, and if your company’s policies are too broad or poorly worded, then whatever distinction existed may be obliterated. Consider the following examples the NLRB’s general counsel offered of employee manual provisions that would violate the NLRA:
- Do not discuss “customer or employee information” outside of work, including “phone numbers [and] addresses.”
- “Never publish or disclose [the Employer’s] or another’s confidential or other proprietary information. Never publish or report on conversations that are meant to be private or internal to [the Employer].”
- “Discuss work matters only with other [Employer] employees who have a specific business reason to know or have access to such information.. .. Do not discuss work matters in public places.”
- “[I]f something is not public information, you must not share it.”
Again, the general theme for why the NLRB’s General Counsel believes these employee policy provisions violate the NLRA is the belief that they restrict disclosure of employee information and therefore are unlawfully overbroad.
Social Media Policies and Violations of the NLRA.
Second, the other area of concern employers should have is concerning their employee social media policies. Now if your company doesn’t have any social media policies, you’ve got another set of issues to deal with.
But here are a few examples that the NLRB’s general counsel found to violate the NLRA:
- “[I]t is important that employees practice caution and discretion when posting content [on social media] that could affect [the Employer’s] business operation or reputation.”
- “Never engage in behavior that would undermine the reputation of
[the Employer], your peers or yourself.”
- Do “not use any Company logos, trademarks, graphics, or advertising materials” in social media.
- “Company logos and trademarks may not be used without written consent ….”
- [You may not c]reate a blog or online group related to your job without the advance approval of the Legal and Communications.
According to the NLRB’s report, these rule examples were unlawful because “they contain broad restrictions that employees would reasonably read to ban fair use of the employer’s intellectual property in the course of protected concerted activity.”
Next Actions for Employers – Update the Company’s Employee Manual
We recently wrote about an employer whose improperly drafted employee personnel manual ended up costing the employer a trial win. See Flag on the Play: Court Takes Away Employer’s Victory Because of Mistake in the Employee Manual. But in case your HR department needs more, the NLRB’s most recent pronouncement on the subject of employee manuals should give employers reason to review their current employee personnel policies, procedures, and agreements. Otherwise, your company could be looking at expending costs and resources in responding to an unfair labor charge.
Minimally speaking, if an employers’ policies or procedures come within an area code of restricting employees’ use or disclosure of company information, then your company should expressly note that such restrictions are not intended to restrict Section 7 communications or other protected concerted activities protected by applicable law. Such language should not be considered a “silver bullet” that will save an otherwise overbroad employee restriction. But if coupled with a smartly drafted policy or restriction, it could be enough to avoid the NLRB’s scrutiny.
For more information about complying with federal or Michigan employment law, including implementing HR best practices and drafting employee manuals, contact employment attorney Jason Shinn. His law firm offers complete employment and HR packages that provide a solid game plan for start-up and growing businesses.