Employers should be careful about designating Employee Handbooks confidential as, according to the National Labor Relations Board’s advice division, that would be unlawful. That advice was contained in one of five memoranda issued by the advice division last month. While not binding on the Board and not official Board precedent, advice memoranda provide guidance to the Board’s Regional Offices on how to handle difficult and novel issues that arise. The recent memoranda cover a variety of workplace issues and apply to both unionized and non-unionized worksites. While the advice division found that particular handbook confidentiality rule to be unlawful, it greenlit several other work rules providing employers with useful guidance when drafting and updating their employee handbooks.
Two of the memoranda weighed in on the validity of eight different workplace rules or policies, applying the National Labor Relations Board’s Boeing test. That test weighs an employer’s interests in maintaining work rules against their effects on employees’ National Labor Relations Act rights. For a discussion of the Boeing decision, see our January 5, 2018 HR Defense blog post and for a discussion of the Board’s General Counsel’s Memorandum providing guidance on applying the Boeing test, see our August 7, 2018 HR Defense blog post.
One of the two “workplace rules” memoranda discussed not only the previously mentioned employee handbook confidentiality policy but also policies preventing employees from disclosing payroll information and placing restrictions on employees’ use of employer email. The handbook confidentiality rule designated the entire employee handbook and its contents confidential and prohibited employees from disclosing that information to non-employees. This rule is unlawful because it effectively precludes employees from discussing handbook policies regarding employee pay, benefits, and working conditions with unions and other third parties (even though the rule did not prohibit discussions with other employees).
The policy restricting the disclosure of payroll information was also found to be unlawful because employees could reasonably interpret the rule as prohibiting them from discussing wages and benefits with each other or with third parties, a fundamental NLRA right.
The employer’s rule banning personal use of its email system, even on non-work time, was found to be in blatant violation of the NLRA. Under current Board law, employers that provide employees with access to email as part of their work must allow employees personal use of the email system during non-working time such as meal or break periods and before and after work, unless they can show “special circumstances” necessary to maintain production and discipline. While the employer’s policy did permit “incidental personal use,” the memorandum stated that this did not save the policy since it specifically forbids such use for messages that “are not considered in support of the [Employer] objective,” which could be interpreted as a reference to union or protected concerted activity.
The memorandum did find that the employer’s directive to an employee requiring him to participate in employer investigations was lawful. While an employer may not require an employee to participate in an investigation regarding NLRA violations, an employee would not construe a rule merely requiring cooperation with employee investigations as requiring participation in an NLRA investigation. Unless the employer specifically referenced an unfair labor practice or NLRA investigation, an employee would reasonably interpret the rule to apply to employer investigations of workplace misconduct.
The other “workplace rules” memorandum, also examined four employer workplace rules, finding three of those rules to be lawful. First, the memorandum found that an employer rule preventing workers from wearing “items of apparel with inappropriate commercial advertising or insignia” was lawful because workers would not interpret it to prohibit wearing items with a union logo, which could violate the NLRA. The rule instead focused on appropriate and professional attire, which could include clothing with a union insignia; it would only restrict inappropriate or unprofessional attire.
Also found to be lawful was the Employer’s rule on the handling of confidential information. This rule directed employees to “exercise a high degree of caution” when handling confidential information, which is defined in three categories: (1) “business plans, internal correspondence, [and] customer lists . . .”; (2)“[p]ersonally identifiable customer and employee information, including name, address, social security, credit card and bank account numbers, and similarly personally identifiable information”; and (3) HIPAA-related information. The rule further explained that certain employees, particularly those in positions supporting managers or performing human resource and timekeeping functions, may have access to personal information concerning employees or confidential information about the employer or its customers, which is maintained by the employer, and those employees should not discuss or divulge the information. This rule was found to be lawful because employees would not reasonably interpret it as limiting their NLRA rights or preventing them from sharing employee names and addresses obtained without resort to an employer’s files. Moreover, the employer had a legitimate business interest and, in some instances, a legal duty, to maintain the confidentiality of certain employee data such as HIPAA information.
The memorandum also validated the employer’s rule on media relations. This rule allowed only employer designated spokespeople to speak to the media, financial analysts, or investors about the employer to avoid sharing information that “could be incorrectly interpreted as an official position” of the employer. The memorandum stated that the rule is clearly directed to when employees are (or are not) authorized to speak on the employer’s behalf. Employees would not interpret this rule as blocking them from discussing workplace grievances with the media.
The employer’s rule barring employees’ from using their personal cellphones during non-work time was found to be unlawful, however, because the Board has long protected employee’ rights to communicate through non-employer methods during lunch or break periods.
While both memoranda provide employers with additional clarity on what types of workplace rules and policies the Board might find to be lawful or unlawful, employers must continue to evaluate the specific language of their rules, the particular employer interests at stake, and employee NLRA rights. Also, employers should keep in mind that even if a policy or rule is lawful, if inconsistently applied it may be found to interfere with employee rights.
If you have questions about your employee handbook or any of your workplace rules or policies, contact your Akerman Labor & Employment lawyer.