Monday, March 23, 2015

Analysis of the NLRB’s guidance on employer rules (or, meet the new boss … same as the old boss)

It’s been nearly two years since then-acting NLRB General Counsel Lafe Solomon issued his office’s guidance on social media policies under Section 7 of the NLRA. At the time, I called the Board’s position “a bungled mess.”

Last Wednesday, current NLRB General Counsel Richard Griffin issued his 30-page missive on employer policies under Section 7 of the NLRA [pdf]. I’m sad (but not surprised) to report that not much has changed in the NLRB’s misguided approach to facially neutral employment policies. The NLRB continues to take facially neutral policies, spin a parade of non-existent anti-union horribles, and conclude that because some hypothetical employee could under the exact proper set of circumstances, that the policy could restrict an employee’s right to communicate with a labor union or complain about work, said policy violates all employees’ section 7 rights.

Notably, the Board seems to be splitting hairs between what is a lawful policy and what is an unlawful policy. Consider the following (non)distinctions the NLRB is drawing:



Unlawful: “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].”

– vs –

Lawful: “Misuse or unauthorized disclosure of confidential information not otherwise available to persons or firms outside [Employer] is cause for disciplinary action, including termination.”


Conduct Towards the Company and Supervisors

Unlawful: “[B]e respectful to the company, other employees, customers, partners, and competitors.”

– vs –

Lawful: “No rudeness or unprofessional behavior toward a customer, or anyone in contact with the company,” and “Being insubordinate, threatening, intimidating, disrespectful or assaulting a manager/supervisor, coworker, customer or vendor will result in discipline.”


Conduct Towards Fellow Employees

Unlawful: “Do not send unwanted, offensive, or inappropriate emails.”

– vs –

Lawful: “No harassment,” and no “use of racial slurs, derogatory comments, or insults.”


Interaction with Third Parties

Unlawful: “Associates 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.”

– vs –

Lawful: “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…. 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.’”


Use of Company Logos, Copyrights, and Trademarks

Unlawful: “Company logos and trademarks may not be used without written consent.”

– vs –

Lawful: “[I]t 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.”


Restricting Photography and Recording

Unlawful: Prohibition from wearing cell phones, making personal calls or viewing or sending texts “while on duty.”

– vs –

Lawful: “No cameras are to be allowed in the store or parking lot without prior approval from the corporate office.”


Restricting Employees from Leaving Work

Unlawful: “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.

– vs –

Lawful: “Entering or leaving Company property without permission may result in discharge.”



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

– vs –

Lawful: 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.”

How does the NLRB spell splitting hairs? Wow, the Board’s GC is drawing some very narrow distinctions, based on little more than the use of few different words.


One More Thing

If you’ve seen any of the recent Marvel movies, you know to stick around though the credits, because there’s always an extra scene hinting at what will happen next in movies to come. Is General Counsel Griffin is taking his cue from Marvel? If you stick around to the end of his report, you’ll find revised policies that the NLRB approved as part of a settlement with Wendy’s. The devil, however, is in the details. Consider this policy on Phones, Cameras, and Recording Devices, given the NLRB’s seal of approval:

Due to the potential for issues such as invasion of privacy (employee and customer), sexual or other harassment (as defined by our harassment /discrimination policy), protection of proprietary recipes and preparation techniques, Crew Members may not take, distribute, or post pictures, videos, or audio recordings while on working time. Crew Members also may not take pictures or make recordings of work areas. An exception to the rule concerning pictures and recordings of work areas would be to engage in activity protected by the National Labor Relations Act including, for example, taking pictures of health, safety and/or working condition concerns or of strike, protest and work-related issues and/or other protected concerted activities.

How do you feel about policies that provide employees with a roadmap to your local NLRB regional office? Guess what? I’m not a huge fan either.

Regardless, this report confirms that employee handbooks and other workplace policies will continue to remain in the middle of the NLRB’s radar for the foreseeable future. If you haven’t recently updated your employee handbook and other policies, now would be a good time to have your friendly neighborhood employment lawyer do so.

Come back tomorrow for a real-world example of how NLRB judges are applying these rules.