NLRB General Counsel Report Addresses Employee Handbooks, Work Rules

Author: Marta Moakley, XpertHR Legal Editor

March 25, 2015

National Labor Relations Board (NLRB) General Counsel Richard F. Griffin, Jr., has issued a report concerning recent employer work rule cases. The report discusses and synthesizes a number of recent challenges to employee handbooks and policies that were presented in cases reviewed, challenged or resolved by the Office of the General Counsel. Employers in unionized, partially unionized or union-free workplaces should review handbook policies and work rules for compliance with National Labor Relations Act (NLRA) protections.

In the report's introduction, Griffin states that the purpose of the report is to "offer guidance on my 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 report compares rules that were found unlawful with rules that were found lawful and includes rationales for each.

Frederick C. Miner, a Shareholder of Littler and a core member of the firm's Labor Management Relations Practice Group, confirms that the report marks the "first time" that the "whole scope" of recent NLRB rulings on rules and policies are summarized in one place. Although the report "can almost read as a How To Manual" for HR, Miner cautions that "it's also an easy-to-use cookbook for employees or labor organizers" who are looking for ways to challenge employer handbooks and internal policies.

The report focuses on a number of rules that have been the subject of recent challenges, including rules that concern:

  • Confidentiality;
  • Professionalism;
  • Antiharassment;
  • Trademarks;
  • Photography or recording; and
  • Media contact.

The report analyzes in detail certain overbroad language in handbooks, such as specific provisions regarding insubordination. Miner cautions that HR professionals and others "who are concerned with a safe, comfortable, productive workplace may find [the NLRB report] surprising and provocative." According to the report, common language prohibiting "disrespectful conduct or insubordination" in the workplace or the simple statement "don't pick fights" has been found to be potentially chilling to employees who may wish to engage in unionization efforts.

Miner notes that, despite the comprehensiveness of the report, a discussion of the effect of employer handbook disclaimers included with otherwise overbroad or ambiguous language is remarkably absent.

The NLRB Office of the General Counsel has issued a number of reports in the past few years that increasingly have caught the attention of employers in union-free workplaces. The report on employer rules may have a comparable effect to the General Counsel's previous reports on social media. Miner states that "the social media report really raised perception and awareness of the NLRB's rulings. I'd expect that this would have a similar impact."