The National Labor Relations Board (NLRB or “Board”) recently issued a memorandum “to offer guidance” to employers in implementing workplace rules that do not violate the National Labor Relations Act (“Act”). The lengthy memorandum, a complete copy of which is available here, is organized by rule topic and provides examples of both unlawful and lawful rules. Although this would seemingly provide much needed clarity to employers, the elusiveness of the distinction between unlawful and lawful rules ultimately leaves employers with a memorandum that falls short of providing any concrete guidance. To make matters worse, the NLRB states in the memorandum that “context matters,” leading the reader to infer that employers might not even be safe adopting the exact language referred to in the memorandum as lawful.

In recent years, the NLRB has been closely scrutinizing non-unionized workplaces in addition to its more traditional and historical oversight of unionized workplaces. The NLRB has repeatedly taken the position expressed in the Board’s decision in Lutheran Heritage Village-Livonia, that a workplace rule that doesn’t explicitly prohibit concerted activity violates the Act if employees would reasonably construe the rule as prohibiting concerted activity. Concerted activity is two or more employees’ acting together to improve their terms and conditions of employment.

The memorandum covers rules regarding confidentiality, insubordination / conduct towards others, third-party communications / media inquiries, and taking photos and videos in the workplace, among others. In addition, the memorandum includes excerpts from the handbook of a large fast-food chain, which revised numerous rules as part of a settlement it reached recently with the Board.

With respect to confidentiality rules, many employers are maintaining or have maintained rules that the NLRB now considers to be unlawful. In this area, very well-intentioned employers have attempted to maintain the privacy of employee personnel information and confidential customer information, but as demonstrated by the memorandum, the broadness of many policies might cause these rules to violate the Act in the opinion of the NLRB. For example, rules such as “Do not discuss customer or employee information outside of work, including phone numbers and addresses” and “You must not disclose proprietary or confidential information about the Employer, or other associates (if the proprietary or confidential information relating to the Employer’s associates was obtained in violation of law or lawful Company policy)” are considered unlawful under the memorandum. By contrast, a rule providing a “Prohibition on disclosure of all information acquired in the course of one’s work” was lawful, even though the memorandum concedes that this rule’s language is “expansive” and “when read in isolation, would reasonably be read to define employee wages and benefits as confidential information.” The rule was lawful, according to the memorandum, because of its context, nested among other rules related to conflicts of interest and SEC compliance.

Rules concerning media inquiries and communications with third parties are also frequently scrutinized by the Board and discussed in the memorandum. Under the Act, employees have a right to communicate with the news media and other third parties about their wage and workplace conditions. Therefore, rules that broadly prohibit employees from discussing work-related matters with the media or third parties are unlawful, according to the NLRB. For example, a rule stating “Employees are not authorized to speak to any representatives of the print and/or electronic media about company matters unless designated to do so by Human Resources, and must refer all media inquiries to the company media hotline” was unlawful, but the following rule is lawful: “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.” The memorandum explains that the latter rule could not reasonably be interpreted by employees as prohibiting them from having discussions about protected activity. If you are struggling to understand the distinction between the lawful and unlawful rules, you are not alone.

In summary, if employers were hoping to get bright-line guidance from the NLRB about handbook rules, the memorandum is not the answer. What it does provide, however, is knowledge about which rules the NLRB has been scrutinizing. Employers equipped with this information can quickly identify whether their rules require revision. The memorandum also provides guidance to employers that the Board’s regulation of these issues is here to stay for the foreseeable future.

If you have questions about the NLRB’s memorandum or your workplace rules, please contact one of your Hinckley Allen Labor & Employment practice attorneys.