You may recall that in the last year of the Obama administration the National Labor Relations Board issued a Memorandum declaring that a number of what most of us consider to be common sense HR policies were “presumed illegal” because they could have a “chilling effect” on employees’ Section 7 rights.
On Wednesday the NLRB reversed itself and issued a Memorandum stating that nine of these standard HR policies will now be “presumed lawful.” This Memorandum will require some employers to modify their Handbooks; for others, only the application of their existing policies will change. In both instances, the changes will be to the benefit of employers. I have provided a brief summary of the new “presumed lawful” policies for your perusal as well as a couple that are still presumptively unlawful.
No. 1: No photography and no recording. Generally, employers can prohibit employees from taking photographs or making audio recordings in the workplace.
No. 2: Civility rules. Employers can require their employees to behave in a civil manner, even when engaging in concerted activity. Employees are still free to criticize their employers; but their employers can require that they do so in a civil manner.
No. 3: Bans on insubordination, non-cooperation, adversely affecting operations. Unless the conduct in question constitutes concerted activity, the General Counsel has acknowledged that “An employer has a legitimate and substantial interest in preventing insubordination or non-cooperation at work. Furthermore, during working time an employer has every right to expect employees to perform their work and follow directives.”
This sounds like common sense-employers have a right to expect employees to actually work, but in the past the NLRB held that rules requiring such conduct were presumed to violate the NRLA.
No. 4: Protecting confidential and proprietary information, and customer information. “….. employees do not have a right under the Act to disclose employee information obtained from unauthorized access/use of confidential records, or to remove records from the employer’s premises.) This means that you can forbid your employees from disclosing confidential employee information.
No. 5: Bans on disruptive behavior. Employers may now prohibit “fighting, roughhousing, horseplay, tomfoolery, and other shenanigans.” and “yelling, profanity, hostile or angry tones, throwing things, slamming doors, waving arms or fists, verbal abuse, destruction of property, threats, or outright violence.” Again, if employees engage in these activities in the context of concerted activity, such conduct could be protected. However, policies prohibiting this type of conduct are now presumed to be lawful. It is the application of these types of policies that can lead to liability.
No. 6: Bans on unauthorized use of company logo or intellectual property. The NLRB stated that “Most activity covered by this [type of] rule is unprotected, including use of employer intellectual property for unprotected personal gain or using it to give the impression one’s activities are condoned by the employer.” Thus, employers can generally enforce policies prohibiting employees from using company logos or intellectual property without permission.
No. 7: Requiring authorization to speak for the employer. Pretty simple, employers can prohibit employees from speaking on behalf of the employer without permission.
No. 8: Bans on disloyalty, nepotism, or self-enrichment. Also pretty simple, employers can enforce policies banning disloyalty, nepotism and self-enrichment.
No. 9: Bans on defamation or misrepresentation. Rules banning “defamatory” statements or “misrepresentations” by employees are now presumed lawful.
SOME WORKPLACE RULES ARE STILL PRESUMED UNLAWFUL
Employers must take the good with the bad. In this case, the bad really isn’t so bad. In addition to declaring the above-mentioned policies presumptively lawful, the NLRB also declared a couple to still be presumed unlawful:
No. 1: Bans on employees discussing or disclosing information about wages, benefits, or other conditions of employment. The NLRB still considers such policies to be per se illegal.
No. 2: Policies Prohibiting employees from joining outside organizations or “voting on matters concerning” the employer. This appears pretty simple as well. You absolutely cannot implement policies prohibiting your employees from joining non-employer organizations or from voting on matters concerning the employer. (Such as whether or not to be represented by a union or to approve a collective bargaining agreement.) This does not mean that you cannot enforce “no moonlighting” policies.
Both of these prohibitions make sense and most employers (at least those that I represent), do not have these types of policies in their handbooks.
As with all things legal, there are exceptions to each of these presumptions. Although a certain policy may now be presumed to be lawful, the application of that policy to a particular circumstance could still give rise to a Section 7 claim. It all depends on the circumstances.