NLRB EXPLAINS WHAT EMPLOYER RULES
ARE UNLAWFUL AND HOW TO MAKE THEM LAWFUL
On March 18, 2015, the NLRB General Counsel (GC), Richard Griffin, issued a report attempting to reduce some of the mass confusion over the NLRB's policies concerning employer handbooks and other company policies. The GC acknowledges most employers do not draft their policies with the object of restricting conduct protected by the labor law, but states that the law does not allow even well-intentioned rules that would inhibit employees from engaging in protected activities. The main principle is that the maintenance of a work rule may violate the law if a rule has a chilling effect on employees' protected activity. The most obvious way a rule would violate the Act is by explicitly restricting protected concerted activity. However, even if a rule does not explicitly prohibit protected activities, it will still be found unlawful if: (1) employees would reasonably construe the rule's language to prohibit protected activity; (2) the rule was promulgated in response to union or other protected activities; or (3) the rule was actually applied to restrict the exercise of protected rights. The GC states the vast majority of violations are found under the first prong, and the NLRB has issued a number of decisions interpreting whether "employees would reasonably construe" employer rules to prohibit protected activity.