NLRB’s Do’s and Don’ts of Employer Handbooks: Part 3

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 three of a three-part series detailing key takeaways from the general counsel’s memorandum focuses on policies regarding trademarks and logos, photography and workplace recording, leaving work, and conflicts of interest. For part one (which addressed policies pertaining to confidentiality and employee conduct toward management), click here. For part two (which addressed policies pertaining to conduct toward coworkers and third parties), click here.

Policies Regarding Logos, Copyrights and Trademarks

Copyright holders have a clear interest in protecting their intellectual property, but handbook rules cannot prohibit employees’ fair protected use of that property. For example, employees have a right to use a company’s name and logo on picket signs, leaflets and other protest material. Broadly banning use of intellectual property without clarification generally will be found unlawful. That being said, if policies simply require employees to respect copyright and trademark laws, and permit fair use, then the policies likely will be lawful.

Examples of policy terms regarding logos, copyrights and trademarks referenced in the general counsel’s March 18 memorandum that were deemed unlawful include the following:

• Do “not use any Company logos, trademarks, graphics, or advertising materials” in social media.
• Do not use “other people’s property,” such as trademarks, without permission in social media.
• “Use of [the Employer’s] name, address or other information in your personal profile [is banned]. ... In addition, it is prohibited to use [the Employer’s] logos, trademarks or any other copyrighted material.”
• “Company logos and trademarks may not be used without written consent.”

Examples of policy terms regarding logos, copyrights and trademarks referenced in the general counsel’s March 18 memorandum that were deemed lawful include the following:

• “Respect all copyright and other intellectual property laws. For [the Employer’s] protection as well as your own, it is critical that you show proper respect for the laws governing copyright, fair use of copyrighted material owned by others, trademarks and other intellectual property, including [the Employer’s] own copyrights, trademarks and brands.”
• “DO respect the laws regarding copyrights, trademarks, rights of publicity and other third-party rights. To minimize the risk of a copyright violation, you should provide references to the source(s) of information you use and accurately cite copyrighted works you identify in your online communications. Do not infringe on [Employer] logos, brand names, taglines, slogans, or other trademarks.”

Policies Regarding Photography and Recording

Under the National Labor Relations Act (NLRA), employees generally have a right to photograph and make recordings in furtherance of protected concerted activity, like photographing health and safety violations or documenting unfair labor practices. The law permits employees to use personal devices to take such pictures and recordings, and to do so during breaks or on non-work time. Thus, rules placing a total ban on such photography or recordings, or banning the use or possession of personal cameras or recording devices, are likely overbroad. The NLRB interprets rules prohibiting activities while “on duty” to include breaks.

Having said this, employers may have lawful policies on photography and recording if they are appropriately limited in scope. For example, employers can prohibit news cameras on their premises and can prohibit employees from recording in areas that would violate patient privacy or other sensitive information.

Examples of policy terms regarding photography and recording referenced in the general counsel’s March 18 memorandum that were deemed unlawful include the following:

• “Taking unauthorized pictures or video on company property” is prohibited.
• “No employee shall use any recording device including but not limited to, audio, video, or digital for the purpose of recording any [Employer] employee or [Employer] operation.”
• A total ban on use or possession of personal electronic equipment on employer property.
• A prohibition on personal computers or data storage devices on employer property.
• Prohibition from wearing cell phones, making personal calls or viewing or sending texts “while on duty.”

Policies Regarding Leaving Work

The NLRA protects employees’ rights to go on strike. Thus, rules that restrict when an employee can leave work may be found unlawful if an employee would reasonably read the rule to forbid strikes and walkouts. Moreover, employers may not deny off-duty employees access to parking lots, gates and other outside nonworking areas except where sufficiently justified by business reasons or pursuant to a narrowly tailored rule.

On the other hand, if the rule makes no mention of strikes, walkouts, disruptions or similar activities, the rule may be found lawful. Likewise, if the context of the rule establishes that a “no walkout” rule is enforced to protect, for example, patients who need medical care, then such rule may be upheld.

Examples of policy terms regarding leaving work referenced in the general counsel’s March 18 memorandum that were deemed unlawful include the following:

• “Failure to report to your scheduled shift for more than three consecutive days without prior authorization or ‘walking off the job’ during a scheduled shift” is prohibited.
• “Walking off the job” ... is prohibited.
• “Entering ... Company property without permission may result in discharge.”

Examples of policy terms regarding leaving work referenced in the general counsel’s March 18 memorandum that were deemed lawful include the following:

• “[L]eaving Company property without permission may result in discharge.”
• “Walking off shift, failing to report for a scheduled shift and leaving early without supervisor permission are also grounds for immediate termination” (in the context of providing health care to patients).

Policies Regarding Conflicts of Interest

The NLRA protects employees’ right to engage in concerted activity to improve their terms and conditions of employment, even if that activity is in conflict with the employer’s interests. For instance, employees may protest in front of the company, organize a boycott and solicit support for a union while on non-work time. If an employer’s conflict-of-interest rule could be read to prohibit such activities, the rule may be found unlawful. If, however, a policy includes examples or clarifies that the conflict rule is limited to legitimate business interests, it likely will be upheld.

The following is an example of policy terms regarding conflicts of interest referenced in the general counsel’s March 18 memorandum that were deemed unlawful:

• Employees may not engage in “any action” that is “not in the best interest of [the Employer].”

Examples of policy terms regarding conflicts of interest referenced in the general counsel’s March 18 memorandum that were deemed lawful include the following:

• Do not “give, offer or promise, directly or indirectly, anything of value to any representative of an Outside Business,” where “Outside Business” is defined as “any person, firm, corporation, or government agency that sells or provides a service to, purchases from, or competes with [the Employer].” Examples of violations include “holding an ownership or financial interest in an Outside Business” and “accepting gifts, money, or services from an Outside Business.”
• Requiring an employee to agree to the statement “I will not engage in any activity that might create a conflict of interest for me or the company,” where the conflict of interest policy devotes two pages to examples such as “avoid outside employment with a[n Employer] customer, supplier, or competitor, or having a significant financial interest with one of these entities.”
• Employees must refrain “from any activity or having any financial interest that is inconsistent with the Company’s best interest” and also must refrain from “activities, investments or associations that compete with the Company, interferes with one’s judgment concerning the Company’s best interests, or exploits one’s position with the Company for personal gains.”

Conclusion

Employers should strongly consider reviewing their handbooks and rules to determine whether their policies on trademarks and logos, photography and workplace recording, leaving work, and conflicts of interest run afoul of the NLRB’s recent guidance. Employers should consider revising any policy that could reasonably be interpreted to: (a) prohibit employees from using the company logo, (b) restrict employees’ authorization to record their workplace, (c) prohibit leaving work without permission, or (d) prohibit generally acting against the best interest of the company. Further, where possible, consider using more specific language with examples regarding the scope of restricted activities (e.g., in lieu of broad prohibitions).

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.