New Guidelines in the National Labor Relations Act

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

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Additional information and resources:

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

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