Walking the Fine Line: Drafting NLRA-Compliant Employment Policies

On March 18, 2015, the National Labor Relations Board's General Counsel issued Memo GC 15-04, shedding at least some light on the issue of what employment policies are permissible under the NLRA.  The last few years have seen the NLRB cracking down on employers with employment policies which reasonable employees would construe as limiting their right to engage in protected, concerted activity.  

The General Counsel speaks through examples, and through those examples, at least points out verbiage that the NLRB would find unlawful.  For example, the following policy language was held to be violative of the law:

  • Language prohibiting employees from discussing "customer or employee information" outside of work;  
  • Language requiring employees to "be respectful to the company, other employees, customers, partners, and competitors;" and
  • Language stating "[m]aterial that is fraudulent, harassing, embarrassing, sexually explicit, profane, obscene, intimidating, defamatory, or otherwise unlawful or inappropriate may not be sent by e-mail. ..."

Most employers are unlikely to see the danger in including the above statements in their handbooks until a charge has been filed against them by a current or former employee.  Furthermore, the parameters of lawful and unlawful employer policies are always being evaluated and better-clarified.  

In short, because this is a developing area of law, where it can be hard to identify potentially unlawful language, it can be difficult for employers to know how to comply. This is why it is crucial to have an attorney skilled in this area of law help you draft and evaluate employee policies.