Dear Atty., The Rules Don’t Apply To Me, Right?
“Dear Atty” is a column aimed at answering employers’ legal questions that surround issues in human resources. Attorney Pete Albrecht of Albrecht Backer Labor & Employment Law, S.C. welcomes you to submit questions for future editions of “Dear Atty.”
I am the human resources manager for our company. For the most part, I like my job. But, I will be honest and admit that I can’t stand having to make changes to our handbook. It’s a real pain in the rear and seems to take forever. A friend of mine mentioned that I may need to make changes to our handbook because of some recent decisions from the National Labor Relations Board. Our company doesn’t even have a union, so those decisions don’t apply to us, right? Right?
Hoping I’m Right
You are wrong, sorry. Recently, the National Labor Relations Board (NLRB) has issued several decisions finding that seemingly innocuous handbook policies violate employees’ section 7 rights under the National Labor Relations Act. Section 7 of the Act applies to both union and non-union employers. So, even though you do not have a union at your company, section 7 would apply to you.
The Law: Under section 7 of the Act, employees have the right to engage in concerted activity for their mutual benefit and protection. Translated, this means that employees have the right to work together regarding issues that affect their terms and conditions of employment. When it comes to handbook provisions, the NLRB will find that they violate the Act if employees “would reasonably construe” the handbook provision to prohibit their section 7 activity.
Here are some examples of some handbook provisions that the NLRB has struck down. I’ll bet you have at least a couple of them in your handbook.
“Do not discuss customer or employee information outside of work.”
The NLRB found this rule violates section 7 because employees have the right to discuss “employee information” (e.g., wages, contact information) with third parties, including unions.
“Be respectful of others and the company.”
This rule was found to violate section 7 of the Act because, under section 7, employees have the protected right to engage in concerted criticism of their employer.
“Do not make insulting, embarrassing, hurtful or abusive comments about your co‑workers.”
Under section 7 of the Act, employees have the right to argue and debate with each other about unions, management and other terms and conditions of employment. According to the NLRB, a rule prohibiting “negative” or “inappropriate” discussions among employees would chill the exercise of this section 7 right.
“All inquiries from the media must be referred to the director of communications in the corporate office, no exceptions.”
According to the NLRB, employees have the right under section 7 to communicate with the news media, government agencies and other third parties about wages, benefits and terms and conditions of employment. Handbook rules that reasonably would be read to restrict such communications are unlawfully overbroad.
“Company logos and trademarks may not be used without written consent.”
Although the use of company logos and trademarks typically is protected by intellectual property laws, the NLRB has found that the non-commercial use of company logos and trademarks by employees is permitted. For example, according to the NLRB, employees have the right under section 7 to use the company’s name and logo on picket signs, leaflets and other protest materials.
“Taking unauthorized pictures or video on company property is prohibited.”
According to the NLRB, employees also have a section 7 right to photograph and make recordings in furtherance of their protected, concerted activity, including the right to use personal devices to take such pictures and recordings.
“Employees may not engage in any action that is not in the best interests of the employer.”
Section 7 of the Act protects employees’ right to engage in concerted activity to improve their terms and conditions of employment, even if that activity is in conflict with the employer’s interests. So, according to the NLRB, this rule violates the Act.
Well, Hoping, I think you get the point: the NLRB has created a strange new world in which seemingly innocent handbook provisions now are in violation of federal law. Unfortunately, it’s probably time to dust off the old company handbook to make sure that your company is not violating federal law. Sorry to be the one to have to tell you this.
If you would like additional information about this topic, please contact Pete Albrecht. Pete is the president and a shareholder at Albrecht Backer Labor and Employment Law. He has represented employers for over 28 years.