Scarinci Hollenbeck, LLC, LLCScarinci Hollenbeck, LLC, LLC

Firm Insights

New Guidelines in the National Labor Relations Act

Author: Scarinci Hollenbeck, LLC

Date: October 2, 2015

Key Contacts

Back

The National Labor Relations Board (“NLRB”) promulgated new guidelines regarding Section 7 and Section 8(a)(1) of the National Labor Relations Act

National Labor Relations Act

On March 18, 2015, The National Labor Relations Board (“NLRB”) promulgated new guidelines regarding Section 7 and Section 8(a)(1) of the National Labor Relations Act. These sections ensure that employees can discuss unfair or illegal practices with other employees or third parties. Particularly focusing on blanket prohibitions and compulsions, the NLRB 

General Counsel’s Memo on Handbook Rules (the “NLRB Memo”) addressed:

  • Confidentiality,
  • Conduct toward Employer,
  • Communication with Outside Parties,
  • Protection of Intellectual Property,
  • Leaving Work at Unauthorized Times, and
  • Conflict of Interest Rules.

Most employee handbooks contain these provisions. However, most handbooks do not demonstrate the nuance the NLRB now requires. For example, an employer cannot state, “Company logos and trademarks may not be used without written consent.” Rather the employer should state:

Respect all copyright and other intellectual property laws. For [the Employer’s] protection as well as your own, it is critical that you show proper respect for the laws governing copyright, fair use of copyrighted material owned by others, trademarks and other intellectual property, including [the Employer’s] own copyrights, trademarks and brands.

This more detailed approach provides employees a clearer understanding of an employer’s intentions and the employee’s rights.

Employees may not leave work at unauthorized times

The NLRB Memo emphasizes that the more general the provision, the more scrutiny it will encounter. Simply stating “Employees may not leave work at unauthorized times;” “Employees may not solicit other employees or distribute literature;” or “Be respectful of others and the Company” is no longer proper because such statements are too broad in scope. That is, while an employer’s intention may be valid, employees might think that they cannot take action that they could lawfully take.

Recently, the NLRB determined in a 2-1 decision that a blanket confidentiality agreement contained in Boeing’s handbook violated the Section 7 rights of its employees. Making the decision worrisome for most employers is the extent that the NLRB determined the clause invalid. Boeing had previously changed the confidentiality clause from mandatory language to suggestive language. It no longer “required” but “recommended” that an employee not discuss confidential information. The NLRB found this suggestion to be contextually identical to a mandatory provision, concluding that employees were not truly free to disagree with the recommendation. Thus, the NLRB’s policy shift is not a matter of changing tone. Instead, the NLRB Memo seeks a more nuanced drafting of prohibitions and compulsions to strike a clear balance between employer and employee rights.

The broader effect of this ruling is still uncertain. However, it shows that the NLRB is enforcing the new guidelines. Because most employee handbooks probably contain these overbroad restrictions, we recommend employers review or revise their handbooks to protect their interests without infringing on their employees’ rights.

###

Additional information and resources:

Labor and Employment Law Group: https://scarincihollenbeck.com/practices/labor-employment/

Employers Won’t “Like” the NLRB’s Latest Social Media Decision:

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Scarinci Hollenbeck, LLC, LLC

Related Posts

See all
10 Common Issues in Franchise Disputes post image

10 Common Issues in Franchise Disputes

The most common franchise disputes involve breach of contract, franchise termination and non-renewal, intellectual property rights, territorial encroachment, royalty and fee payments, franchisor support obligations, and violations of state franchise laws such as the New Jersey Franchise Practices Act. Franchisors and franchisees can often resolve these conflicts by providing written notice detailing the dispute and […]

Author: Paul Grossman

Link to post with title - "10 Common Issues in Franchise Disputes"
Reputational Risk and Legal Exposure: Why New Jersey Businesses Must Manage Them Together post image

Reputational Risk and Legal Exposure: Why New Jersey Businesses Must Manage Them Together

New Jersey businesses must manage legal and reputational risk together because modern disputes play out on two fronts at once: the legal proceeding itself and the court of public opinion, where customers, employees, investors, and business partners often reach conclusions long before a judge or jury has had the opportunity to evaluate the facts. Success […]

Author: Sean M. Pena

Link to post with title - "Reputational Risk and Legal Exposure: Why New Jersey Businesses Must Manage Them Together"
Eviction Is Not Always the End: Understanding Post-Possession Rent Claims in New Jersey and New York post image

Eviction Is Not Always the End: Understanding Post-Possession Rent Claims in New Jersey and New York

No. An eviction does not automatically end a tenant’s obligation to pay rent. Post-eviction rent claims are common because recovering possession resolves who has the right to occupy the premises, but it does not extinguish the tenant’s contractual obligations under the lease. Whether unpaid or future rent remains owed depends on three factors: the lease’s […]

Author: Donald M. Pepe

Link to post with title - "Eviction Is Not Always the End: Understanding Post-Possession Rent Claims in New Jersey and New York"
Company Dissolved? Legal and Financial Consequences to Expect post image

Company Dissolved? Legal and Financial Consequences to Expect

A company is dissolved; legally, it ceases to exist. Accordingly, dissolution results in significant legal and financial consequences.  It is a process that must be properly managed to avoid continuing liability. The Corporate Dissolution Process Corporate dissolution is the legal process of formally closing a corporation, paying its debts and distributing the remaining assets. Most […]

Author: Jay McDaniel

Link to post with title - "Company Dissolved? Legal and Financial Consequences to Expect"
The Legal Implications of Signing a Triple Net Lease post image

The Legal Implications of Signing a Triple Net Lease

A triple net lease is a commercial lease in which the tenant pays the property’s real estate taxes, insurance, and maintenance costs, known as the three nets, in addition to base rent. They are most often used in freestanding retail and office buildings and in large single-tenant industrial properties, with terms that typically run 10 […]

Author: Donald M. Pepe

Link to post with title - "The Legal Implications of Signing a Triple Net Lease"
Business Law FAQs: What Companies Need to Know post image

Business Law FAQs: What Companies Need to Know

Running a business in New Jersey and New York means operating within one of the most legally complex environments in the country. From the moment you form your company to the day you sell it, and every contract, hire, dispute, and transaction in between, business law is present in decisions that look, on the surface, […]

Author: Scarinci Hollenbeck, LLC

Link to post with title - "Business Law FAQs: What Companies Need to Know"

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Sign up to get the latest from our attorneys!

Explore What Matters Most to You.

Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.

Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.

Let`s get in touch!

* The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form. By providing a telephone number and submitting this form you are consenting to be contacted by SMS text message. Message & data rates may apply. Message frequency may vary. You can reply STOP to opt-out of further messaging.
“If you would like to submit a file, please email it directly to info@sh-law.com.

Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!