Last week the NLRB General Counsel issued an eight point guidance on the agency’s view of what makes a policy or work rule lawful or in violation of an employees’ Section 7 rights to engage in protected concerted activity. Yesterday we blogged about the first two points in the guidance, rules regarding employee conduct and rules regarding confidentiality requirements of an employer.According to General Counsel Griffin, the NLRB is likely to find work rules or policies unlawful if they restrict an employee’s right to engage in any topic of discussion with others that concerns wages and working conditions, or that restricts an employee’s expression of opinion over those issues, even if those expressions are seen as disrespectful.
Today we examine three more issues in the guidance: Policies regarding conduct toward fellow employees, policies regarding employee interaction with third parties and rules restricting use of employer logos, copyrights and trademarks.
1. Rules or Policies Regarding Conduct Toward Fellow Employees.
While an employer can prohibit insubordination, which might include an employee’s use of abusive language toward a manager or supervisor, an employer cannot restrict even heated or “intemperate” discussions between employees when it relates to wages and working conditions. [Insert your own example of colorful language between employees who disagree about unionization.] The rationale is that an employer cannot set guidelines or limits on the free flow of information, opinion and discussion regarding their wages and working conditions or their desire to organize or not. In that regard, the NLRB has found the following rules to be among examples of possible unlawful restraint:
- Do not send unwanted, offensive or inappropriate emails
- Material that is fraudulent, embarrassing, harassing, sexually explicit, profane, obscene, intimidating, defamatory, or otherwise unlawful or inappropriate may not be sent by email. (The NLRB found this policy unlawful because the terms embarrassing, intimidating and inappropriate could reasonably be believed by an employee to include messages regarding protected concerted activity!)
If a policy like the second one listed above, which seems obviously to address employee misconduct toward one another, than what is an employer do to? Maybe the examples provided in the guidance which were found lawful by the NLRB offer assistance:
- Threatening, intimidating, coercing or otherwise interfering with the job performance of another employee or with a visitor [is prohibited]. (The policy protects third parties as well as the ability of employees to do their jobs.)
- Making inappropriate gestures, including staring [is prohibited]. (Lawful because the prohibition is limited to actions deemed unprofessional or disrespectful and not to other protected activity.)
2. Rules or Policies Regulating Third Party Communications
Many employers have policies prohibiting employees from speaking on behalf of the employer to the media without prior approval. This makes good sense. The NLRB notes that some policies, maybe designed to restrict unauthorized communication with the media are unlawful because they are overly broad and restrict all communication with the media. A broad policy may, for instance, also be inferred to restrict employees from answering a reporter’s questions about a leafleting campaign or a picket, says the NLRB. Examples of an overly broad policy are as follows:
- Employees are not authorized to speak to any representatives of the print or electronic media about company matters unless specifically authorized to do so by HR. (The NLRB found that “company matters” could include matters of wages and working conditions or unionization efforts.)
- Associates are not authorized to answer any questions from the news media. When approached for information, employees should refer the person to the to the Media Representative. (The NLRB found that questions could also be about protected activity by employees, making the rule unlawful.)
We would wager that many employers have policies very similar to the ones set forth above. So, how does an employer limit statements to the media (or governmental agencies) to certain identified individuals without committing an unfair labor practice? A little fine tuning of the policies is necessary to ensure that the prohibitions are restricted to business related events such as the following example from the General Counsel:
- Events may occur at our stores that result in immediate attention from the media. It is imperative that one person speaks for the company in order to deliver an appropriate message and to avoid giving misleading or incorrect information in any media inquiry. …Answer reporter questions like this: I am not authorized to comment for the employer/company (or I don’t have the information that you want). Let me have our public affairs office contact you. (The NLRB found this lawful because the direction on what employees should say was prefaced by a statement that put the direction in the context of an event occurring and prohibiting the employee from speaking on behalf of the employer)
3. Rules or Policies Regarding Use of Logos, Trademarks or Copyrights
The NLRB recognizes that employers often have trademarks or copyrights on their names or logos. Nevertheless, it also recognizes that even copyrighted and trademarked material is subject to limited and non-commercial use by others. The agency has found that employees have a right to use a company name, logo and presumably trademark on leaflets, picket signs and other forms of speech protected by the Labor Act as part of concerted activity. Overly broad prohibitions on the use of logos and copyrighted and trademarked material or names are likely unlawful restrictions of employees’ rights. The NLRB offers the following as an example of such:
- Do not use any company logos, trademarks, graphics or advertising materials in social media.
Again, we bet that many employers have a similar prohibition. The NLRB finds it concerning because a group of employees may use such designs or materials in an organizational campaign or the like. On the other hand, the NLRB finds the following policy to be lawful:
- 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 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.
It is plain to see that at least the NLRB wants employers to know that not only overtly unlawful restrictions on employees’ rights to engage in protected concerted activity is prohibited, but so are even those rules that can reasonably be construed by employees to do the same. Employers should take note and review their policies to ensure they are not overly broad in restricting employee conduct and communication, proving again that it’s not always what you say, but how you say it that may lead to trouble.
