NLRB Issues a Common Sense Memo

Employers recently caught another break from the NLRB.  Last week the Board issued a Memorandum declaring that nine standard employer policies that have in the past been “presumed to be unlawful”  will now be presumed lawful.  Under the Obama administration, the Board took the position that these nine policies could have an unlawful “chilling effect” on employees’ exercise of their rights to engage in “protected concerted activity” under Section 7 of the NLRA.  Apparently, that position has changed.

The nine “presumed legal” policies are:

No. 1: Civility rules.

No. 2: No photography or audio no recording on company premises.

No. 3: Bans on insubordination, non-cooperation, and adversely affecting operations.  In a surprising moment of clarity, the Board stated 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.”

No. 4: Bans on disruptive behavior such as  “horseplay, fighting, roughhousing, yelling, profanity, hostile or angry tones, throwing things, slamming doors, waving arms or fists, verbal abuse, destruction of property, threats, or outright violence.”

No. 5: Protecting confidential and proprietary information of the employer and customer information.

No. 6: No defamation or misrepresentation.

No. 7: No unauthorized use of company logo or intellectual property.

No. 8: Requiring authorization before an employee may speak for the employer.

No. 9: No disloyalty, nepotism, or self-enrichment.

Unfortunately, some usual policies are still presumed to be unlawful by the Board:

No. 1: No discussing or disclosing information about wages, benefits, or other conditions of employment.

No. 2: No joining outside organizations or “voting on matters concerning” the employer.


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