NRLB General Counsel Richard Griffin, Jr. has published a report summarizing recent agency decisions evaluating the validity of employee handbook policies, noting that the National Labor Relations Act (NLRA) does not allow "even well-intentioned rules that would inhibit employees from engaging in activities protected by the Act."

As a general matter, employers can violate Section 8(a)(1) of the NLRA with respect to handbook policies in several different ways, including: (1) maintaining work rules that explicitly restrict protected and concerted activity or rules; (2) maintaining rules that employees would reasonably construe as prohibiting Section 7 activity; (3) promulgating rules in response to union or other Section 7 activity; or (4) applying rules to restrict the exercise of Section 7 rights.

The General Counsel's report details rules that were found unlawful regarding confidentiality, professionalism, harassment, trademark, photography/recording, and media contact.  It also provides examples of lawful rules within each of the foregoing categories.  For example, blanket prohibitions on discussing customer or employee information or disclosing details about the employer were viewed as Section 8(a)(1) violations, while tailored prohibitions on the disclosure of confidential financial data or confidential information regarding business partners, vendors or customers were viewed as lawful.

Because the NLRB has been so active in its scrutiny of handbook policies in recent years, the General Counsel's report is a useful tool for ensuring that employer handbooks remain legally compliant.  Read more.