The National Labor Relations Board’s (NLRB) Office of General Counsel has released a report offering guidance to employers on how to draft employment policies without running afoul of employees’ rights to engage in protected concerted activity under the National Labor Relations Act (NLRA). The report serves to emphasize that seemingly insignificant details, such as precise phrasing or context, can even make an otherwise neutral policy unlawful.
The NLRA generally prohibits employers from interfering with or restricting employees’ rights to engage in “protected concerted activity.” The term generally encompasses union-related activity, but also includes discussing conditions of employment, such as wages, with other employees or third parties. In enforcing the NLRA, the NLRB has traditionally focused on employers with unionized workforces. However, the NLRB has increasingly turned its attention to employee handbooks in recent years, where all employers can run afoul of the NLRA regardless of whether their workforces are unionized. The NLRB’s report signifies a vigorous assertion of the agency’s own significance in a time when American unions are on the decline.
The report highlights where the NLRB has most often found handbook policies to unlawfully chill protected concerted activity and provides examples of both lawful and unlawful policy language. The types of policies which can potentially violate the NLRA are surprisingly varied. The policies covered in the report include policies on confidentiality; conduct towards supervisors, management, and coworkers; communications with outside parties; use of company logos, copyrights, or trademarks; photography or recording; leaving work; and conflict of interest.
Whether a policy is compliant with the NLRA may often be difficult to determine and may only hinge on one or two words. Despite issuance of the report, even the NLRB’s own case decisions are inconsistent on what language makes for a lawful policy. Employers should consult with employment counsel before drafting any employment policies to ensure compliance with the NLRA.
If you have any questions regarding the NLRA or employment policies, please contact any of the attorneys at Royal LLP at (413) 586-2288.