8 ways your employee handbook language may be unlawful: what to look for and ways to avoid potential violations
Most employers do not draft employee handbooks aiming to restrict activity protected by the National Labor Relations Act (“NLRA”)—but even well intentioned, yet unlawfully broad, language could violate the NLRA if it would inhibit employees from engaging in Section 7 protected activities. In Lutheran Heritage Village-Livonia, the National Labor Relations Board determined any employer rule which has a chilling effect on employee’s Section 7 activity may violate Section 8(a)(1) of the NLRA. Moreover, it concluded that even if a rule does not explicitly prohibit Section 7 activities, rules may be unlawful if:
- An employee would reasonably interpret the rule’s language to prohibit Section 7 activity,
- The rule was formed in response to union or other Section 7 activity, or
- The rule was actually applied to limit the exercise of Section 7 rights.
A rule which facially prohibits Section 7 activities may be easy to spot—but what about other gray-area situations? The National Labor Relations Board’s General Counsel recently released a memo explaining what is and is not lawful language in employee handbooks. This article attempts to synthesize the memo and provide employers key matters to keep in mind when creating or revising their employee handbooks.
Confidentiality Rules
What to keep in mind: Section 7 gives employees a right to discuss wages, hours, terms, and conditions of employment with other employees as well as non-employees. This means language specifically prohibiting employees from discussing their employment information violates the Act.
Example of unlawful language:
- “Do not discuss customer or employee information outside of work, including phone numbers and addresses”
- “Sharing of overheard conversations at the work site with your co-workers, the public or anyone outside of your immediate work group is strictly prohibited”
How to avoid violating the law: Because employers do have a reasonable right to maintain privacy of some business information, they may broadly prohibit employees from releasing “confidential” information—as long as this does not reference limits on employment information. The following are examples of facially lawful rules. Notice that these rules (a) do not reference wages, hours, terms or conditions of employment, (b) use the term “confidential” without defining it in an overbroad manner, and (c) do not contain language that would reasonably lead an employee to interpret the rule as prohibiting Section 7 activities.
Example of lawful language:
- “No unauthorized disclosure of business ‘secrets’ or other confidential information”
- “Do not disclose confidential financial data, or other non-public proprietary company information. Do not share confidential information regarding business partners, vendors, or customers”
Rules Regulating Employee Conduct towards Management
What to keep in mind: Under Section 7, employees have a right to criticize or complain about an employer’s labor policies or treatment of employees. Therefore, language in employee handbooks that prohibit or punish “disrespectful” or “negative” conduct against an employer are unlawfully broad because an employee could interpret it to prohibit their ability to criticize unfair labor practices. However, the Board does not consider rules in isolation so the context in which these rules appear is highly significant, making some rules more or less likely to violate Section 7.
Examples of unlawful language:
- “Be respectful to the company, partners, and other employees”
- “No disrespectful conduct or insubordination, including, but not limited to, refusing to follow orders from a supervisor or a designated representative”
- “Never engage in behavior that would undermine the reputation of [the Employer], your peers or yourself”
How to avoid violating the law: Rules that require employees to be respectful to customers, competitors and the like—rather than to the company or management—do not violate the law. Furthermore, rules that encourage cooperation with co-workers do not implicate Section 7 rights.
Example of lawful language:
- “No rudeness or unprofessional behavior toward a customer, or anyone in contact with the company”
- “Each employee is expected to work in a cooperative manner with management/supervision, co-workers, customers, and vendors”
Rules Regulating Employee Conduct towards Co-Worker
What to keep in mind: Employees have a right to debate or argue among themselves about contentious issues including, but not limited to, employment terms and conditions, management, politics, and/or about unions. In Linn v. United Plan Guards, the Supreme Court stated that even “intemperate, abuse and inaccurate statements” are protected speech. Therefore, employers must be careful not to include policies meant to develop and maintain a peaceful work environment but which are so broad that employees could interpret it to prohibit their Section 7 right to voice their opinion, discuss certain subjects or even quarrel.
Examples of unlawful language:
- “Do not make insulting, embarrassing, hurtful, or abusive comments about other company employees”
- “Show proper consideration for others’ privacy and for topics that may be considered objectionable or inflammatory, such as politics”
How to avoid violating the law: Policies that require employees to be respectful and professional with regards to customers or customers—rather than the employer, management or co-workers—does not violate an employee’s Section 7 rights. The key to the following lawful policies is that they do not prohibit criticism of the company.
Example of lawful language:
- “Logos or graphics worn by employees must not be violent, discriminatory, abusive, offensive, demeaning, or otherwise unprofessional”
- “No harassment of employees, customers, or facility visitors”
Rules Regulating Employee Conduct towards Third Parties
What to keep in mind: Employees also have a Section 7 right to speak to members of the news media, government agencies, and other third parties about terms and conditions of employment, wages, benefits, and other employment issues. Most often, employers’ media policies limit employee speech in an effort to control official statements, such as requiring management approval before speaking to the media or a government agency. However, employers should be careful to ensure that such rules would not lead an employee to believe that the policy broadly limits their rights to speak to such individuals or organizations.
Examples of unlawful language:
- “Employees are not authorized to speak to any representative 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”
- “If you are contacted by any government agency, you should contact the Law Department immediately for assistance”
How to avoid violating the law: Employers can limit employees from speaking on the company’s behalf as long as rules do not limit an employee’s right to communicate to third parties on their own—or other employee’s—behalf.
Example of lawful language:
- “”The company strives to anticipate and manage crisis situations in order to reduce disruption to our employees and to maintain our reputation as a high quality company. To best serve these objectives, the company will respond to the news media in a timely and professional manner only through the designated spokespersons.”
Company Logos, Copyrights & Trademark Rules
What to keep in mind: While intellectual property rights protects a company’s logo, copyrights, trademarks, and name, a broad ban which also prohibits an employee’s non-commercial use of a name, logo, copyright, or trademark to identify the employer in the course of Section 7 activity is unlawful. For example, employees have a right to use a company’s name or logo on protest material.
Examples of unlawful language:
- “Do not use any company logos, trademarks, graphics or advertising material in social media”
- “Use of [a Company’s] name, address, or other information in your personal profile is banned”
How to avoid violating the law: Although broad prohibitions that completely ban the use of a company’s intellectual property violates Section 7, rules that require employees to simply respect intellectual property laws are permissible. Notice that these laws do not ban all use—but rather require employees to follow intellectual property law.
Example of lawful language:
- “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.”
Photography and Recording Rules
What to keep in mind: Employees also have a Section 7 right to take photographs and make recordings in furtherance of their concerted activity, including, but not limited to documenting unfair labor practices and documenting health and safety violations. Therefore, rules that place a total ban on photography, recording, or even using or possessing personal devices to take such pictures and records could be interpreted by employees to prohibit certain protected Section 7 rights—making such policies unlawful.
Examples of unlawful language:
- “Taking unauthorized pictures or video on company property is prohibited”
- “Employees are prohibited from wearing cell phones, making personal calls, or viewing or sending texts ‘while on duty’”
How to avoid violating the law: If employers narrowly tailor company policies—rather than institute a complete ban on—photography and recordings to protect their legitimate interest in maintaining confidentiality of business records, such policies are likely not going to be in violation of Section 7. For example, narrow and specific prohibitions on the use of recording devices to protect patient or client confidentiality is lawful.
Example of lawful language:
- “Employees are not allowed to use cameras to photograph patients, in accordance with HIPAA rules”
Rules Restricting on Leaving Work
What to keep in mind: One of central rights Section 7 protects is an employee’s right to leave a jobsite in protest. Therefore, employer policies that could be construed as prohibiting strikes, walk-outs, and other such ‘disruptions’ are unlawfully overbroad.
Example of unlawful language:
- “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”
How to avoid violating the law: Rules that do not reference “strikes”, “walk outs”, “disruptions,” and the like are lawful because employees will reasonably interpret such rules to prevent leaving work for reasons unrelated to concerted activity. Furthermore, the NLRB stated that where employees are directly responsible for patient care, rules prohibiting leaving work without permission were proper to ensure patients are not left without adequate care.
Examples of lawful language:
- “Leaving Company property without permission may result in discharge”
- “Employees are required to be present during their scheduled work hours”
Conflict of Interest Rules
What to keep in mind: Employers sometimes include language in employee handbooks that prohibit activities that are against the interest of the company. However, this kind of broad language could also be construed by employees as prohibiting their Section 7 right to engage in concerted activity, including going on strike, boycotting the company, soliciting support for a union—all of which may be against the company’s interest.
Example of unlawful language:
- “Employees may not engage in ‘any action’ that is not in the best interest of the Employer”
How to avoid violating the law: The NLRB read several conflict of interest policies from employers and determined that lawful policies provided examples and clarified that the prohibition on conflicting activities were only limited to legitimate business interests, such as prohibiting financial stakes in competitors or limiting an employee from engaging in a competing business. Therefore, rather than include blanket conflict of interest rules, employers should provide context for understanding such rules as well as detail the limited scope of these policies.
Examples of lawful language:
- As an employee, “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 devoted 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.”
Concluding Thoughts
In analyzing the National Labor Relations Board’s memo, two over-arching themes are apparent. First, the NLRB always considers employer policies in the context in which it is written. Therefore, language clarifying and narrowing the scope of rules could be the difference between a lawful and unlawful rule.
Second, policies that establish total bans on employee activities are usually held unlawful because, in the absence of clarification or limitations, employees could reasonably interpret it to prohibit Section 7 activities.