IMPORTANT: New NLRB Guidance on What You Can and Can’t Include In Your Employee Handbooks

by | Apr 22, 2015 | Compliance, Employee Management, Our Blog, Policies

The National Labor Relations Board’s (NLRB) General Counsel just released a massive report on employee handbooks (and other relevant policies). The 30-page memorandum reported on Section 7 rights in the context of eight types of employer rules. Section 7 of the National Labor Relations Act (NLRA) provides both unionized and non-unionized employees the right to engage in “concerted activities” for “mutual aid or protection”. So now is the time for companies to take a closer look at their employee handbook – or hire an HR pro to do so.

Specifically, the report outlined handbook content that’s lawful, and that which is likely to violate the National Labor Relations Act. The report, which includes examples and recent NLRB decisions, applies to all employers regardless of whether or not they have union-represented employees. In general, when handbooks contain vague or overly broad statements, employers are setting themselves up for problems.

Here is a summary of the points explained in the memorandum, major handbook areas listed in the report as well as specific examples of what the NLRB considers overly broad (i.e., potentially illegal) and what it will likely find lawful:


  1. Rules about confidentiality.
    The feds make it very clear that employees have a right to discuss “wages, hours and other terms and conditions of employment” with fellow employees and nonemployees. Any rule against discussing terms and conditions of employment (wages, hours or workplace complaints) violates Section 7.

But the feds said it’s OK to have “broad prohibitions on disclosing ‘confidential’ information” to protect “the privacy of certain business information” if certain conditions are met.

Here are two examples of language the NLRB considers overly broad:

  • Do not discuss “customer or employee information” outside of work, including “phone numbers [and] addresses.”
  • Discuss work matters only with other [Employer] employees who have a specific business reason to know or have access to such information…. Do not discuss work matters in public places.

On the other hand, here’s an example of confidentiality language that is lawful: No unauthorized disclosure of “business ‘secret’ or other confidential information.”


  1. Leave restrictions.

Because the NLRA puts the ability to strike as one of workers’ fundamental rights, any handbook language that could “regulate when an employee can leave work” can potentially get firms in trouble, especially if the handbook contains references to “walkouts,” “disruptions”, “strikes” or the like. Here are two examples:

  • 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.
  • “Walking off the job …” is prohibited.

This language, however, is OK in the NLRB’s eyes: Entering or leaving Company property without permission may result in discharge.


  1. Workers’ conduct towards the company and management.

The Memorandum reminds firms that workers have the “right to criticize or protest their employer’s labor policies or treatment of employees.” Rules that prohibit protected concerted criticism of the employer will be unlawfully overbroad. Furthermore, “a rule that prohibits employees from engaging in disrespectful, negative, inappropriate, or rude conduct towards the employer or management, absent sufficient clarification or context”, will usually be found unlawful. An employee’s criticism of an employer does not lose its protection simply because it is false or defamatory. Only maliciously false statements may be prohibited by employer rules.

The memorandum highlighted a number of cases where firms’ handbook language clearly prevented workers from exercising those rights.

The NLRB considers this overly broad: “Be respectful to the company, other employees, customers, partners, and competitors.”

But this statement is lawful: “Each employee is expected to work in a cooperative manner with management/supervision, coworkers, customers and vendors.” Therefore, a rule that requires employees to be respectful and professional to coworkers, clients, or competitors, but not the employer or management, will generally be found lawful. Rules prohibiting conduct that amounts to insubordination are also lawful.


  1. Employees’ conduct toward co-workers.
    In addition to the employee/manager relationship, the NLRB pointed out what type of language should dictate workers’ interactions with one another. Employees have the right to argue and debate with one another about unions, management, and their terms and conditions of employment, even though these types of discussion may become contentious. An employer cannot ban “negative” or “inappropriate” discussions among its employees, without further clarification. Even though employers have a legitimate reason to maintain a harassment-free workplace, anti-harassment rules cannot be so broad that employees would read them as prohibiting such debates.

What to avoid:

  • “Don’t pick fights” online”
  • Do not make “insulting, embarrassing, hurtful or abusive comments about other company employees online,” and avoid the use of offensive, derogatory, or prejudicial comments.”

What’s OK: “Threatening, intimidating, coercing, or otherwise interfering with the job performance of fellow employees or visitors.”


  1. Interaction with third parties.
    Employees have a right to communicate with the news media, government agencies, and other third parties about wages, benefits, and other terms and conditions of employment. Rules that restrict such communications are unlawful. Companies must be careful to ensure that their media policies not ban employees from speaking to the media or other third parties on their own or their fellow employees behalf. For example, policies requiring employees to refer all questions from the news media to the employer’s media relations department, without providing specific examples of inquiries which must be forwarded to an official spokesperson, are considered overly broad.


  1. Restricting use of company logos, copyrights and trademarks.
    While copyright holders can protect their intellectual property, employers cannot have rules that prohibit employees’ fair protected use of that property.

The NLRB General Counsel explains this as follows:

A company’s name and logo will usually be protected by intellectual property laws, but employees have a right to use the name and logo on picket signs, leaflets, and other protest material. Employer proprietary interests are not implicated by employees’ non-commercial use of a name, logo, or other trademark to identify the employer in the course of Section 7 activity. Thus, a broad ban on such use without any clarification will generally be found unlawfully overbroad.


  1. Restricting photography and recording.
    Employees have a right to photograph and make recordings. However, employers should refer to their state-specific laws regarding this. Rules placing a total ban on such photography or recordings, or banning the use or possession of personal cameras or recording devices, may be considered unlawfully overbroad. It is lawful to impose limitations to protect confidentiality and employee privacy.


  1. Conflict of interest rules.
    An employer’s conflict-of-interest rule is unlawful if it prohibits protected activities. Therefore, such rules are impermissible if they prohibit protesting in front of the company, organizing boycotts, or soliciting support for a union during non-work time. However, if the conflict-of-interest rules include examples or clarifies that its application is limited to legitimate business interests, it will be lawful.



For further information on the major handbook areas listed in the report, as well as specific examples of what the NLRB considers potentially illegal and what it will find lawful, contact Kellie Boysen at 717-855-5589.