Keep the NLRB's Target Off Your Back: Look Out for Overbroad Policies Restricting Employee Communications

As we noted last week, the National Labor Relations Board (“NLRB”) is making it clear it will go out of its way to target your personnel policies. In fact, at a recent labor law conference, NLRB General Counsel Richard Griffin expressed his frustrations that a large number of private employers (whether unionized or not) continue to maintain policies that he believes violate the National Labor Relations Act (“NLRA”). Though the NLRB has already invalidated the policies of numerous private sector employers, Griffin stated that one of the NLRB’s key goals is identifying more employers responsible for such violations.

Of particular concern to the Board are policies that restrict employee communications regarding terms and conditions of employment. For instance, Griffin referred to statistics indicating that about 60 percent of employers maintain policies that prohibit employees from discussing their compensation even though such prohibitions violate the NLRA.

It is important to note, however, that the NLRB’s focus is not solely limited to policies restricting discussions about compensation. Instead, the Board’s focus is broader because the NLRA gives employees the right to publicize work place issues or communicate and act together to improve any of the terms and conditions of employment. Importantly, this right applies to both union and non-union employees. As consequence of this right and the increased focus on employer policies, the NLRB and its administrative law judges have recently invalidated rules prohibiting:

• Communications about workplace investigations into employee misconduct;
• Communications about leaves of absence, sick calls, or workers’ compensation injuries;
• Communications about tips/gratuities with customers or employees;
• Insubordination against management without adequately defining the type of conduct prohibited;
• Lack of respect with employees or customers or failure to work “harmoniously” with co-workers without adequately defining the conduct to allow activity protected under the NLRA;
• “Boisterous” activity in the workplace;
• Making disparaging comments about the employer or engaging in activity that might be harmful to the “smooth operation, goodwill, or profitability” of the employer;
• “Unauthorized dispersal of sensitive Company operating materials or information to any unauthorized person” without adequately defining the information that cannot be disclosed and allowing an exception for information protected by the NLRA; and
• Social media postings regarding wages and any other terms and conditions of employment.

One could certainly understand an employer’s concern over some of these developments, such as the argument that an employer may need to tolerate insubordination or mistreatment of customers. No matter your view of the reasonableness of the Board’s actions as illustrated above, employers should be aware that employees have a broad right to discuss their terms and conditions of employment, which can include topics such as wages, hours, safety, vacation, sick time, discipline, promotions, and all related subjects, regardless of whether the employees are represented by a union. The NLRB is thus looking to invalidate any employer policies that could be construed as restricting employee rights to communicate about and act on issues they may have regarding their working conditions.

The General Counsel is considering providing guidance to employers on compliant work rules. In the meantime however, employers should strongly consider reviewing their personnel policies to examine whether they can be construed in a manner that restricts employee rights to communicate about and act on work place issues. Any overbroad terms in policies must be narrowly defined and may also need to be combined with a specific disclaimer to inform employees that they would be allowed to conduct activity protected by the NLRA.