On March 18, 2015, the Office of the General Counsel (the
"General Counsel") of the National Labor Relations Board
("NLRB" or the "Board") issued Memorandum GC 15-04 (the
"Memorandum") providing guidance regarding the legality
of employer work rules. The Memorandum does not, in and of itself,
represent a change in the law. Instead, the General Counsel
published the Memorandum "to offer guidance on [his] views of
this evolving area of labor law, with the hope that it will help
employers to review their handbooks and other rules, and conform
them, if necessary, to ensure they are lawful."
The General Counsel continues to review work rules under the test
articulated in the Board's decision in Lutheran Heritage
Village-Livonia, 343 NLRB 646 (2004). Under Lutheran
Heritage, a work rule need not explicitly restrict Section 7
protected activity to be found unlawful. Instead, a work rule will
be deemed to be unlawful if: (i) employees would reasonably
construe the rule's language to prohibit Section 7 activity;
(ii) the rule was promulgated in response to union or other Section
7 activity; or (iii) the rule was actually applied to restrict the
exercise of Section 7 activity.
In the first part of the Memorandum, the General Counsel provides
examples of handbook rules that the Office of the General Counsel
has evaluated pertaining to:
- Confidentiality;
- Employee conduct toward the company and supervisors;
- Employee conduct toward fellow employees;
- Employee interaction with third parties;
- Employee use of company logos, copyrights, and trademarks;
- Restrictions on photography and recording;
- Restrictions on employee ability to leave work; and
- Conflicts of interest.
For each example, the Memorandum explains whether the General
Counsel determined the rule to be lawful or unlawful and provides a
brief explanation of the reasons for that conclusion. Moreover, in
assessing the legality of the provisions, the General Counsel
stresses that individual provisions of an employee handbook cannot
be viewed in isolation but rather must be viewed in
"context."
In the second part of the Memorandum, the General Counsel focuses
on handbook rules in connection with a recently settled unfair
labor practice charge. That settlement was negotiated following the
General Counsel's initial determination that several of the
employer's handbook rules were facially unlawful. The
Memorandum sets forth those rules the General Counsel determined to
be unlawful, including a discussion of the reasons for the General
Counsel's conclusions. The General Counsel then provides the
full text of the modified work rules the employer agreed to
implement pursuant to the settlement, and which the General Counsel
considers to be lawful. These include provisions relating to:
- Social media;
- Handbook disclosure;
- Employee compliance with law and related company policies;
- Conflicts of interest;
- Confidentiality;
- Employee conduct;
- Solicitation and distribution; and
- Use of phones and recording devices.
While the Memorandum does not constitute a change in the law, it
demonstrates that workplace rules continue to be one of the General
Counsel's enforcement priorities. Indeed, "the Office of
the General Counsel continues to receive meritorious charges
alleging unlawful handbook rules," in part because "the
law does not allow even well-intentioned rules that would inhibit
employees from engaging in activities protected by the Act."
Moreover, it is likely that disputes regarding the legality of work
rules will continue to be an area of prolific litigation before the
Board. Labor organizations and other employee advocacy groups have
shown a keen interest in this evolving area of the law and likely
will continue in their efforts to support charges claiming that
employers are maintaining unlawful work rules. This is particularly
true given that the General Counsel and the NLRB are likely to
continue to broadly construe those circumstances under which
"employees would reasonably construe a rule's language to
prohibit Section 7 activity," such that the rule is deemed to
be unlawful.
Failure to maintain lawful work rules can subject employers to
significant unfair labor practice liabilities ranging from
overturning employee discipline to invalidating thresults of a
representation election where employees vote against union
representation. As such, union and non-union employers alike should
familiarize themselves with the Memorandum in order to better
understand the General Counsel's views regarding the legality
of employer work rules. While compliance with the views expressed
in the Memorandum will not necessarily provide a safe harbor,
particularly because the General Counsel stresses that work rules
must be examined in "context," those employers who follow
the General Counsel's guidance likely will mitigate exposure to
unfair labor practice complaints. Additionally, employers should
continue to monitor NLRB and circuit court decisions interpreting
these issues and providing further guidance with respect to the
evolving application of the Lutheran Heritage
standard.
Given the speed at which this area of the law continues to evolve,
employers are encouraged to review their work rules regularly in
order to ensure that they are legally compliant.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.