Employers Take Note: NLRB Finds Common Handbook Policies Unlawful

On March 18, 2015, the National Labor Relations Board (the “NLRB”) shared a Memorandum from its General Counsel, Richard Griffin, regarding employers' handbook policies and their tendency to unlawfully discourage concerted activity. Part 1 of the Memorandum discussed a list of unlawful policies, and Part 2 discussed fast food chain Wendy's handbook policies that the NLRB found to be unlawful. The Wendy’s settlement and the General Counsel’s Memorandum serve as a warning to all employers. Employers should review their handbooks and discuss with employment counsel whether they should implement changes to their policies in light of the guidance released by the NLRB and contained in recent decisions.

According to Part 1 of the Memorandum, the NLRB found the following policies to be unlawful:

• A confidentiality policy that broadly prohibits employees from discussing, publishing, or disclosing any type of information regarding fellow employees.
  Note: When read in context, a confidentiality policy that does not cause employees to think that “confidential information” includes information about employee wages, benefits, or conditions of employment would be lawful.
• A policy that prohibits employees from making comments regarding the company or its management. This includes prohibiting employees from criticizing the company in a public forum and on social media.
  Note: A policy that simply requires employees to be respectful to customers, competitors, and other fellow employees would be lawful.
• An employee conduct policy that broadly and ambiguously prohibits heated discussions among employees regarding unionization, political matters, employer’s labor policies, and employer’s treatment of employees.
  Note: A policy that is written in the context of unprotected comments toward coworkers (e.g., unlawfully harassing comments), rather than protected criticism of the employer, will be deemed lawful.
• A media policy that contains a blanket restriction on employee communication with third parties, which would reasonably be read to ban employees from speaking to the media or other third parties on their own behalf or on behalf of other employees.
  Note: A policy that causes employees to reasonably believe that they may not speak on behalf of the company (rather than on their own behalf or behalf of others) will be construed to be lawful.
• A policy containing broad restrictions prohibiting use of the company’s name and logo, which employees could reasonably construe as a prohibition on the use of the employer’s intellectual property in their picket signs, leaflet, and protest materials.
  Note: A policy that simply requires employees to respect employer’s trademarked or copyrighted material will be lawful.
• A policy placing a total ban on photographing, recording, or possessing a camera or recording device, which could be reasonably interpreted to prohibit their use on non-work times, attempts to document health and safety violations, or documentation of unfair labor practices.
  Note: A policy would be found lawful if the scope is appropriately limited, such as a policy that bans news cameras, not personal cameras.
• A leave policy that regulates when employees may leave work, which employees may reasonably read to forbid protected strike actions and walkouts.
  Note: A policy that does not prohibit “walking off the job” or “work stoppage” or obtaining permission before entering employer’s property will be found lawful. However, “walking off the shift” in the context of the employee’s health care responsibilities may be found lawful because it may be read as ensuring patients are not left without adequate care.
• A conflict-of-interest policy that employees could reasonably read to prohibit protesting in front of the company, organizing a boycott, or soliciting support for a union while on non-work time.
  Note: A conflict-of-interest policy that provides specific examples and can be read in context as prohibiting employment for a competing business, rather than prohibiting interactions with labor organizations, will be found lawful.

According to Part 2 of the Memorandum, the NLRB struck down the following policies from Wendy's handbook because they broadly prohibited employees from:

1. Reproducing or transmitting Wendy's employee handbook for any purpose;
2. Commenting on social media about the company's business, financial performance, strategies, clients, policies, employees, or competitors in any way;
3. Using copyrighted, trademarked or other protected information without prior approval;
4. Posting photographs taken at company events or on company premises;
5. E-mailing, posting, commenting, or blogging anonymously or creating a blog related to employee's job;
6. Maligning, defaming, or disparaging anyone within the company;
7. Responding to negative statements about the employee or company before seeking help from the Legal and Communications Department;
8. Avoiding any conflict of interest between employee's personal interest and those of the company;
9. Disclosing employee's personal information;
10. Soliciting, collecting funds, or distributing literature on company premises without proper approval;
11. Walking off the job without authorization;
12. Using inappropriate language;
13. Making false accusations against the company; and
14. Operating a camera phone or using tape recorders, dictaphones, or other types of voice recording devices anywhere on company property.

In a bilateral NLRB settlement agreement, the NLRB and Wendy's modified the policies the NLRB found unlawful and the NLRB included the amended policies in the last section of the Memorandum.

This is another example of the NLRB’s expansive approach to enforcement of the National Labor Relations Act and yet another reason for employers to obtain a review of their written policies.

If you have any questions regarding the Memorandum or what changes you should consider, please contact Adiba Jurayeva at (602) 229-5319 / Adiba.Jurayeva@quarles.com, David B. Kern at (414) 277-5653 / David.Kern@quarles.com, Fred Gants at (608) 283-2618 / Fred.Gants@quarles.com, John Klages at (312) 715-5060 / John.Klages@quarles.com, Kelly Davis at (239) 659-5066 / Kelly.Davis@quarles.com, or your local Quarles & Brady attorney.