On March 18, 2015, NLRB General Counsel Richard F. Griffin, Jr. issued Memorandum GC 15-04, which he intended to bring some clarity to the NLRB’s sweeping enforcement effort against employee handbook policies his office has deemed to be overbroad and infringing on workers’ Section 7 rights. All employers, particularly those that are not unionized, should take this 30-page memo in hand and compare it to their own employee handbooks to see if any of their policies might be considered illegal by the NLRB.
The memorandum is split into two parts. In the first part, it compares policies found to be unlawful with policies found to be lawful and attempts to explain that reasoning. The second part discusses a recent settlement with Wendy’s International LLC regarding its handbook policies. In this part of the Memorandum, the general counsel sets forth Wendy’s rules that initially were found unlawful with an explanation, along with Wendy’s modified rules, adopted pursuant to an informal, bilateral board settlement agreement, which the Office of the General Counsel does not believe violate the act.
Though the guidance provides a single place for employers to see the GC’s office position on a wide spectrum of common employee handbook policies, the rationale provided for the distinctions made between lawful and unlawful policies will be no more satisfying to employers. Indeed, with respect to many of the policy types, it can be frustrating to try to reconcile the general counsel’s reasoning from one policy to the next. Just one example hopefully illustrates this point: “Each employee is expected to work in a cooperative manner with management/supervision, coworkers, customers and vendors” was considered to be lawful, but “Be respectful of others and the Company” was not. See the difference? I don’t.
This guidance is particularly important for non-union employers to understand because their policies have never been the subject of collective bargaining. Employers are urged to compare their handbook policies to those addressed by the general counsel. If any of the employers’ policies are likely to be found unlawful, they should contact their labor and employment counsel to address the potential deficiencies and to prepare workable policies that are likely to survive the General Counsel’s Office’s scrutiny. Although the memorandum includes policies the office considered to be lawful, many of them appear to be excerpted from larger policies, and the context may make all the difference in the world.
Stay tuned – we expect to have a more in depth analysis of this guidance next week.