NLRB’s Do’s and Don’ts of Employer Handbooks: Part 2

On March 18, 2015, the National Labor Relations Board (NLRB) Office of the General Counsel released a 30-page memorandum providing guidance on employer rules and handbooks. The memorandum further solidified the NLRB’s increased attention to, and enforcement efforts toward, non-union employers. In the memorandum – which applies to union and non-union employers – the general counsel provides examples of lawful and unlawful employer rules and policies on topics such as confidentiality in the workplace, conduct between coworkers, interactions with third parties, use of logos and trademarks, and employee interactions with management employees.

This part two of a three-part series detailing key takeaways from the general counsel’s memorandum focuses on policies regarding employee conduct toward coworkers and third parties. For part one (which addressed policies pertaining to confidentiality and employee conduct toward management), click here. For Part three (which addresses Trademarks and Logos, Photography and Workplace Recording, Leaving Work, Conflicts of Interest), click here.

Policies Regarding Employee Conduct Toward Coworkers

Under the National Labor Relations Act (NLRA), employees generally have a right to argue and debate with each other about unions, management, and the terms and conditions of employment. These discussions can become contentious, but remain protected in most instances even if they include “intemperate, abusive and inaccurate statements.” Thus, employers cannot generally ban “negative” or “inappropriate” discussions among coworkers without further clarification. Even anti-harassment policies cannot be drafted so broadly as to prohibit vigorous debate or intemperate comments regarding protected subjects. For example, prohibiting discussions about politics may be deemed unlawful because it could include debate regarding proposed right-to-work legislation.

Having said this, rules regarding professionalism that simply require employees to be respectful to customers or competitors, or that direct employees not to engage in unprofessional conduct without mentioning the company or its management, would likely be lawful.

Examples of policy terms regarding employee conduct toward coworkers referenced in the general counsel’s March 18 memorandum that were deemed unlawful include the following:

• “[D]on’t pick fights” online.
• Do not make “insulting, embarrassing, hurtful or abusive comments about other company employees online,” and “avoid the use of offensive, derogatory, or prejudicial comments.”
• “[S]how proper consideration for others’ privacy and for topics that may be considered objectionable or inflammatory, such as politics and religion.”
• Do not send “unwanted, offensive, or inappropriate” e-mails.
• “Material that is fraudulent, harassing, embarrassing, sexually explicit, profane, obscene, intimidating, defamatory, or otherwise unlawful or inappropriate may not be sent by e-mail.”

Examples of policy terms regarding employee conduct toward coworkers referenced in the general counsel’s March 18 memorandum that were deemed lawful include the following:

• “Making inappropriate gestures, including visual staring” is prohibited.
• Any logos or graphics worn by employees “must not reflect any form of violent, discriminatory, abusive, offensive, demeaning, or otherwise unprofessional message.”
• No “[t]hreatening, intimidating, coercing, or otherwise interfering with the job performance of fellow employees or visitors.”
• No “harassment of employees, patients or facility visitors.”
• No “use of racial slurs, derogatory comments, or insults” (in context of rules pertaining to unlawful harassment and discrimination).

Policies Regarding Employee Conduct Toward Third Parties

The NLRA protects employees’ right to communicate with the news media, government agencies and other third parties about wages, benefits, and other terms and conditions of employment. Handbook rules that reasonably could be read to restrict such communications may be deemed unlawfully overbroad.

On the other hand, employers may lawfully control who makes official statements for the company. However, policies should be careful to not ban employees from speaking to the media or other third parties on their own (or other employees’) behalf.

Examples of policy terms regarding employee conduct toward third parties referenced in the general counsel’s March 18 memorandum that were deemed unlawful include the following:

• Employees are not “authorized to speak to any representatives of the print and/or electronic media about company matters” unless designated to do so by HR, and must refer all media inquiries to the company media hotline.
• “[A]ssociates are not authorized to answer questions from the news media....When approached for information, you should refer the person to [the Employer’s] Media Relations Department.”
• “[A]ll inquiries from the media must be referred to the Director of Operations in the corporate office, no exceptions.”
• “If you are contacted by any government agency you should contact the Law Department immediately for assistance.”

Examples of policy terms regarding employee conduct toward third parties referenced in the general counsel’s March 18 memorandum that were deemed lawful include the following:

• “The company strives to anticipate and manage crisis situations in order to reduce disruption to our employees and to maintain our reputation as a high quality company. To best serve these objectives, the company will respond to the news media in a timely and professional manner only through the designated spokespersons.”
• “Events may occur at our stores that will draw immediate attention from the news media. It is imperative that one person speaks for the Company to deliver an appropriate message and to avoid giving misinformation in any media inquiry. While reporters frequently shop as customers and may ask questions about a matter, good reporters identify themselves prior to asking questions. Every...employee is expected to adhere to the following media policy: ... Answer all media/reporter questions like this: ‘I am not authorized to comment for [the Employer] (or I don’t have the information you want). Let me have our public affairs office contact you.”

Conclusion

Employers should strongly consider reviewing their handbooks and rules to determine whether their policies on employee conduct toward coworkers and third parties run afoul of the NLRB’s recent guidance. Employers should consider revising any policy that could reasonably be interpreted to: (a) enforce generalized civility requirements among coworkers, or (b) restrict employees from speaking to the media in all circumstances. Further, where possible, consider using more specific language with examples regarding the scope of restricted activities (e.g., in lieu of broad prohibitions against speaking to the press).

In part three of this three-part series, we will review policies regarding (1) trademarks and logos, (2) photography and workplace recording, (3) leaving work, and (4) conflicts of interest.

To read the general counsel’s March 18, 2015 memorandum, click here.

Please reach out to your McGuireWoods contact or a member of the McGuireWoods labor and employment team for any questions you may have or assistance you might need in bringing your handbook or policies into compliance.