NLRB General Counsel Issues New Guidance on Employee Handbooks

The NLRB’s Office of the General Counsel has issued a report that provides new guidance on employee handbooks.  The report, which is available here, sets out the most recent views of the General Counsel on what he describes as an evolving area of labor law.  According to the General Counsel, Richard Griffin, Jr., the goal of the report is to help employers “to review their handbooks and other rules, and conform them, if necessary, to ensure that they are lawful.”

The report points out that a policy in a handbook can run afoul of federal labor law if it could reasonably be construed by employees as infringing on their protected rights.  This is true even if the policy has never actually been enforced.  As a result, policies that are “overbroad” and that have potential “chilling effects” on the statutory rights of employees present a real risk to employers – even where an employer has not applied a policy in a discriminatory manner or intended a policy to have a chilling effect.

Much like the General Counsel’s previous reports on social media, this report highlights a number of handbook rules that the Board has found to be unlawful.  More importantly from a guidance perspective, the report explains the rationale behind the Board’s findings and provides examples of rules that are compliant with the law.  The first part of the report focuses on handbook rules that are most frequently brought to the Board’s attention, including rules on: (1) confidentiality; (2) employee conduct toward management, co-workers, and third-parties; (3) employee use of company logos, trademarks, and copyrights; and (4) conflict-of-interest rules.  In the second part of the report, the General Counsel presents a more in-depth study of the Board’s recent settlement with Wendy’s International, LLC, which resulted in a number of modifications to Wendy’s handbook rules.

The implicit message to employers from the General Counsel’s report is that the Board’s scrutiny of overbroad workplace rules is not going away anytime soon.  At the same time, the Board appears to be telegraphing a desire to be transparent – a fact from which employers can take at least some comfort.