Employment Law Report

By George J. Miller

In recent years, perhaps due to the steep decline in union organizing activity that traditionally created much of the work at the National Labor Relations Board, the Board, or more precisely the General Counsel of the Board, has been focusing attention on non-union employers’ policies that could violate the National Labor Relations Act (NLRA).  An example that has garnered a lot of attention is company social media policies. 

Recently, the current General Counsel of the NLRB put out a 30-page memo discussing the application of the NLRA to the following kinds of employee handbook policies:

• Confidentiality
• Conflicts of interest
• Speech and other conduct regarding the company and company supervisors
• Speech and other conduct regarding fellow employees
• Communications about the employer with third parties outside the company
• Restrictions on the use of company logos, copyrights and trademarks
• Restrictions on the use of cameras and recording devices at work
• Restrictions on leaving work during the workday 

The memo discusses actual cases in which the General Counsel’s office reviewed these policies and found them either lawful or unlawful under the NLRA.  Examples of both lawful and unlawful policies are given.  This is very useful for employers, attorneys and consultants in drafting policies that will pass muster at the NLRB.  The memo also discusses the settlement of a case involving Wendy’s International’s employee handbook.  It discusses various Wendy’s policies that were allegedly unlawful and how they were modified by Wendy’s and approved by the General Counsel’s office in the settlement.  Click here to access the page on the NLRB website where the memo can be found.