I’ve had a little more time to digest the latest memo from the NLRB opining on what is and what isn’t appropriate for employers to have in their policies. And I’ve come to a very serious conclusion:
It’s an utter mess.
(Fellow employment lawyers use the phrases “bungled mess” (Jon Hyman), “not good” (Molly DiBianca), and “Inconsistent, overreaching, it’s a
hot tepid mess” (Eric Meyer) to describe the latest missive.)
For employers, make no mistake: This is the NLRB’s attempt at an all-out, crazy assault on an employer’s ability to have policies that have any teeth to them. Even the most innocuous of policies can get shot down by the NLRB as being over broad and illegal.
For example, telling employees “Don’t release confidential guest, team member or company information. . . .” is now deemed to be “illegal” because it could, in the NLRB’s view, “reasonably be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employment of employees other than themselves–activities that are clearly protected by Section 7.”
Similarly, telling employees not to share confidential information with co-workers unless they need the information to do the job is also overbroad. And if you have a policy that requires employees to report unauthorized access to or misuse of confidential information? No good, says the NLRB.
Now, it’s important to emphasize that the courts have yet to weigh in on these issues so its possible (probable?) that the courts will find the NLRB is doing a bit of overreaching of its own. But that doesn’t do employers much good now. Do you revise your policies to fit within the NLRB’s vision of what the policies should be? Or do you keep them as is and, if the NLRB comes knocking, revise them then and say three “mea culpas”?
That’s going to be a business decision. But given the NLRB’s strident position, here are some other examples of policies or practices that the NLRB found objectionable. Chances are, your current policies have something similar in them.
- Telling employees to be “completely accurate and not misleading and..[to] not reveal non-public information”.
- Telling employees that if they are in doubt about whether to post something, “DO NOT POST” but rather check with company’s attorney or legal department.
- Prohibiting employees from posting photos, music, videos and quotes and personal information without obtaining the owner’s permission — in the absence of further explanation.
- Prohibiting employees from non-commercial use of the Employer’s logo or trademarks while engaging in protected concerted activities.
- A policy that “offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline.” Similarly, a policy that “communications with coworkers…that would be inappropriate in the workplace are also inappropriate online” is too ambiguous for the NLRB.
- A provision that encourages employees to “think carefully about ‘friending’ coworkers”.
- A “savings clause” that suggests that the policy will be administered in compliance with the NLRB does not cure the “ambiguities”, according to the NLRB.
- A rule that prohibits the disclosure of personal information about company employees and contingent workers .
- A rule that prohibits employees from commenting on any legal matters.
- A policy that suggests that employees not “pick fights” online and to communicate in a “professional tone”.
- A provision that requires employees to “get permission before reusing others’ content or images”.
- Advising employees that they are “encouraged to resolve concerns about work by speaking with co-workers, supervisors or managers”.
- Telling employees that they can’t publish online “material non-public information” or “confidential or proprietary” information.
- Advising employees to “avoid harming the image and integrity of the company”.
- Prohibiting employees from making “disparaging or defamatory comments”.
- Restricting employees from communicating with the media.
So, you might be asking, is there anything left for an employer to draft? The answer is yes, but to many employers, it will feel like you’ve closed the doors only to leave all the windows open. The NLRB actually has an entire policy that it found lawful so that may be a good starting point for employers who are risk-adverse.
For the rest of us, here are some things that the NLRB has blessed:
- Telling employees to develop a “healthy suspicion” and to be wary about being tricked into giving out confidential information.
- Prohibiting employees from discussing information relating to “safety performance of the company’s systems or components for vehicles” or “secret, confidential or attorney-client privileged information” because none of the provisions refer to employees.
- Urging employees to respect copyright or intellectual property laws.
- Suggesting to employees that they use their “best judgment and exercise personal responsibility”.
- Telling users that they may not post anything on the Internet in the name of the employer without prior written consent.