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September 28, 2020

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September 25, 2020

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“Guidance” That Does Not Guide: NLRB General Counsel Issues Interpretations of Common Employee Handbook Policies

We have not exactly been shy in expressing concern regarding many of the National Labor Relations Board’s (NLRB) recent actions, nor hesitant to opine that its actions appear purposefully designed to advantage unions and create expansive new employee rights from the language of the 80-year-old National Labor Relations Act of 1935 (NLRA). Much of the recent criticism has centered on the NLRB declaring unlawful various employee handbook policies that employers have long used and that have gone largely ignored by the Board until recently.

In tacit acknowledgement of the concern and confusion these decisions have created, the NLRB general counsel recently issued a memorandum summarizing some Board rulings on employer policies, and giving examples of policies it found lawful and unlawful in areas such as confidentiality; employee conduct and interactions with others; restrictions on use of logos, photography, and recording equipment; restrictions on employees leaving work; and conflict of interest rules. The general counsel’s stated purpose in issuing this memorandum was “to offer guidance on my views of this evolving area of labor law, with the hope that it will help employers to review their handbooks … and ensure that they are lawful.”

Much of the guidance falls in line with what we have seen of the NLRB’s expansive view of the employee right to engage in concerted activities for mutual aid or protection. Setting aside the question of whether these Board interpretations are the product of sound legal analysis or the result of politics being played, in many places employers can look at the examples and intelligently consider whether their policies are acceptable; and if not, what work they need to make them compliant. In other cases, however, the memorandum’s attempts to distinguish lawful from unlawful policies appear to create more questions than they answer, and may leave employers scratching their heads on whether they can even use certain policies seemingly necessary to effectively manage a workforce.

To be fair, this “guidance” is still probably better than no guidance at all, and in numerous places throughout the memorandum, it is reasonably easy to understand how to apply the Board’s position, even if employers disagree with the rationale. For example, the Board found the following policy unlawful:

  • Prohibition from wearing cell phones, making personal calls, or viewing or sending texts “while on duty.”

According to the general counsel, this policy violates the NLRA because “employees would reasonably understand ‘on duty’ to include breaks and meals during their shift, as opposed to actual work time.” One must wonder, if the general counsel walked around the NLRB cafeteria and asked employees eating if they were on duty, whether they would respond affirmatively or would instead say “no, I’m on break.” Regardless of the wisdom of the general counsel’s belief that reasonable people believe “on break” means “on duty,” the fix to this apparently offensive policy language is to simply change “while on duty” to “while on working time.”

In other cases however, the general counsel’s examples of “unlawful” rules are troubling in their expansiveness and befuddling in their application. For example, the Board found an employer’s policy prohibiting “[d]efamatory, libelous, slanderous or discriminatory comments about [the Company], its customers and/or its competitors, its employees or management” unlawfully overbroad because employees “reasonably would construe [it] to ban protected criticism or protests regarding their supervisors, management, or the employer in general.” While in other policy examples the general counsel emphasized the importance of reading the policy in context with the material around it, the fact that the employer only sought to ban what seems to be malicious activity was apparently not persuasive in this instance.

Perhaps most perplexing, however, is the memorandum’s attempt to explain how an employer could have an unlawful policy prohibiting employee insubordination, an issue that caused no small amount of consternation last year. According to the general counsel, the following employer rule violates the NLRA:

  • Disrespectful conduct or insubordination, including, but not limited to, refusing to follow orders from a supervisor or a designated representative.

By contrast, according to the general counsel, this rule is lawful:

  • Being insubordinate, threatening, intimidating, disrespectful, or assaulting a manager/supervisor, coworker, customer, or vendor will result in discipline.

The reason for the different conclusion? The second rule is lawful, while the first is not, because “Although a ban on being ‘disrespectful’ to management, by itself, would ordinarily be found to chill Section 7 criticism of the employer, the term here is contained in a larger provision that is clearly focused on serious misconduct, like” … (wait for it) … “insubordination, threats and assault.” It is hard to imagine how the first rule addressing disrespectful conduct is not clearly contained in a larger provision focused on insubordination, yet the second policy is, unless the general counsel wishes to communicate that insubordination only becomes serious misconduct if also coupled with threats or assault. It seems impossible that this could be the case, unless suddenly the law is that employees may openly defy the orders of their supervisors, as long as that insubordination is not accompanied by threats of a pummeling.

The memorandum deserves a read by anyone who has tracked the NLRB’s activity over the past year, and it should be required reading for professionals with responsibility for preparing employer policies or advising on them. It remains remarkable to us that the Board continues to strike down long-used policies designed to maintain workplace order in the name of employees reasonably believing they infringe on their rights to unionize and engaged in protected concerted activity (like, oh say, making sure bans on being insubordinate are housed within provisions that ban insubordination or interpreting “on break” to mean “on duty”). However, as perplexing as it may be, the memorandum does give employers more information than they previously had, including a list of “lawful” rules to use in handbooks. At the same time, the puzzling nature of many of the Board’s rulings and this latest “guidance” suggests that many human resources professionals, whose extensive work demands prevent them from following the daily machinations of the NLRB, could have difficulty parsing the morass and, apparently, deep level of nuance that separates lawful from unlawful policies in the eyes of the NLRB. Working with sophisticated and knowledgeable counsel when auditing or creating employer policies and handbooks may now be more important than ever.

© 2020 Foley & Lardner LLPNational Law Review, Volume V, Number 89


About this Author

Natasha Dorsey, Civil Litigation Attorney, Foley and Lardner Law Firm
Special Counsel

Natasha Dorsey is special counsel and a litigation attorney and counselor with Foley & Lardner LLP. She has experience in multiple areas of civil litigation, including extensive experience in state and federal labor and employment law that includes major motion and jury trial strategy and preparation, as well as litigation experience in consumer protection and construction law. Ms. Dorsey has successfully defended numerous charges by employees filed with state and federal anti-discrimination agencies and the National Labor Relations Board across the country. In...