The National Labor Relations Board (“NLRB”) General Counsel, Richard Griffin, recently issued the
“Report of the General Counsel Concerning Employer Rules,” a comprehensive report providing
guidance to employers on what the NLRB deems to be lawful and unlawful company handbook
provisions and policies. The rules in the Report apply to both unionized and non-unionized employers
because the National Labor Relations Act (“NLRA”) restricts all employers from issuing policies or rules
that inhibit employees from engaging in activities protected by the NRLA, such as discussing wages,
criticizing management, publicly communicating about working conditions and discussing unionization.
The Report contains many examples of prohibited employee handbook provisions which would not
appear to violate the law to many employers. For this reason, it is important for a company to review its
employee handbook in light of the Report, and to modify any provisions that would be unlawful.
Rules Regarding Confidentiality. Employees have a right to discuss wages, hours and other terms of
employment with other employees and nonemployees, so any rule against discussing conditions of
employment, or a rule that employees would reasonable understand to prohibit such discussions, would
violate the NLRA. For example, the following rule would be unlawful: “Do not discuss customer or
employee information outside of work, including phone numbers and addresses.”
Rules Regarding Employee Conduct Toward the Company and Management. Employees have a
right to criticize or protest their employer’s labor policies or treatment of employees, so any rule that can
be read to prohibit criticism of the company or its management will be found unlawfully overbroad. For
example, the following rule would be held to be unlawfully overbroad: “Be respectful to the company,
other employees, customers, partners, and competitors.” as would the rule “Be respectful of others and
the Company.” Since an employee’s right to criticize an employer’s labor policies includes the right to
do so in a public forum, the following rule would be unlawful: “Do not make statements that damage the
company or the company’s reputation or that disrupt the company’s business relationships.”
Rules Regarding Conduct Towards Other Employees. Employees have a right to argue and debate
with each other about unions and conditions of employment. Accordingly, rules which restrict this are
unlawfully overbroad. For example, the following rule would be held to be unlawfully overbroad since it
would limit employees rights to honestly discuss these subjects: “Do not make insulting, embarrassing,
hurtful or abusive comments about other company employees online, and avoid the use of offensive,
derogatory, or prejudicial comments.”
Rules Regarding Employees Interaction With Third Parties. Employees have the right to
communicate with the news media, government agencies, and other third parties about wages, benefits,
and other terms and conditions of employment. Accordingly, rules which restrict this are unlawfully
overbroad. For example, the following rule would be held to be unlawfully overbroad: “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.”
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