--- title: "NLRB Explains What Employer Rules Are Unlawful and How to Make Them Lawful" description: "" url: "https://wimlaw.com/alerts/nlrb-explains-what-employer-rules-are-unlawful-and-how-to-make-them-lawful" date: "2026-05-27T20:38:07+00:00" language: "en-US" --- # NLRB Explains What Employer Rules Are Unlawful and How to Make Them Lawful Written on March 15, 2015. *Tag(s):* [James W. Wimberly](https://wimlaw.com/index.php?option=com_tags&view=tag&id%5B0%5D=3:james-w-wimberly), [Martin H. Steckel](https://wimlaw.com/index.php?option=com_tags&view=tag&id%5B0%5D=4:martin-h-steckel), [2015 Alerts](https://wimlaw.com/index.php?option=com_tags&view=tag&id%5B0%5D=85:2015-alerts), [May 2015 Newsletter](https://wimlaw.com/index.php?option=com_tags&view=tag&id%5B0%5D=99:may-2015-newsletter) 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. The GC report is divided into two parts. The report compares common employer rules the NLRB has found unlawful with rules it found lawful and explains the reasoning. It covers confidentiality rules, professionalism rules, anti-harassment rules, trademark rules, photography/recording rules, and media contact rules. The second part discusses handbook rules from a recently settled unfair labor practice charge against Wendy's. This part of the report sets forth Wendy's rules that the NLRB initially found unlawful with an explanation, along with Wendy's modified rules. In discussing unlawful confidentiality rules, the GC memorandum finds a rule "prohibiting employees from disclosing details about the employer" to be unlawful, but a rule stating "no unauthorized disclosure of business secrets or other confidential information" will be lawful. Addressing rules regarding employee conduct with the company and supervisors, the GC memorandum finds a rule "be respectful of others and the company" to be unlawful, while a rule stating "each employee is expected to work in a cooperative manner with management/supervision, co-workers, customers and vendors" to be lawful. In discussing rules regarding conduct towards fellow employees, the GC finds a rule "do not send unwanted, offensive, or inappropriate emails" to be unlawful, but a rule prohibiting "threatening, intimidating, coercing, or otherwise interfering with the job performance of fellow employees or visitors" to be lawful. Addressing rules regarding employee interaction with third parties, the GC finds a rule stating "employees are not authorized to speak to any representative of the media about company matters unless designated to do so by HR" to be unlawful, but goes on to give several examples of lawful rules regarding employee communications with the media. Addressing rules restricting use of company logos, copyrights and trademarks, the GC finds a rule "do not use any company logos, trademarks, graphics, or advertising materials in social media" to be unlawful, but again gives examples of lawful rules protecting employer logos, copyrights, and trademarks. The GC then addresses rules restricting photography and recording devices. The GC states that a rule prohibiting "use or possession of personal electronic equipment on employer property" is unlawful, apparently because employees should have the right to use personal equipment to engage in a protected activity while on breaks or other non-work time. A single example is given of a lawful rule regulating pictures and recording equipment with the rationale that in context the employees would read the rule to ban news cameras, not their own cameras. Regarding employer rules restricting employees from leaving work, the GC finds a rule "walking off the job is prohibited" to be unlawful, because it reasonably could be read to include protected strikes and walkouts. On the other hand, the GC finds a rule to be lawful "entering or leaving company property without permission may result in discharge." Regarding employer conflict of interest rules, the GC finds a rule that ”employees may not engage in any action that is not in the best interest of the employer" to be unlawful, but finds other stated rules to be lawful because they include context and examples that indicated that the rules were not meant to encompass protected concerted activity. In the second part of the report, involving the Wendy's handbook, a number of common employer rules or policies are found to be unlawful. Extremely helpful, however, are a number of lawful handbook rules negotiated pursuant to the Wendy's settlement agreement, governing handbook disclosure, social media, conflict of interests, confidential information, employee conduct, no distribution/no solicitation, and telephone/cell phones/camera phones/recording devices. > *Wimberly & Lawson Comments: The NLRB's position on employer handbooks and other personnel policies is very frustrating, and they are going to be very difficult for the average human resource executive, or even the average labor lawyer, to interpret and apply. Further, it is likely that a more employer-friendly NLRB in the future will rescind some of these technical and demanding NLRB case precedents. In the meantime, employers are left in a dilemma of whether to commit significant resources to try to bring their rules in compliance with the revolving NLRB doctrine, or whether to run some risks in this regard. Reasonable people can reach different conclusions as to the best strategy. However, should a union organizing campaign commence with a potential for an NLRB election, it is recommended that employers immediately seek competent labor law counsel to determine whether any of their policies are unlawful and objectionable, in order to minimize liability to the company resulting from illegal policies being in effect during the critical period before an NLRB election.* *For a copy of this NLRB memorandum, you can request one from Wimberly & Lawson or you can go to http://apps.nlrb.gov/link/document.aspx/09031d4581b37135.* *For questions or additional information call James W. Wimberly, Jr., Martin H. Steckel, or any other attorney at (404) 365-0900 or at or .* - [](https://x.com/intent/post?url=https%3A%2F%2Fwimlaw.com%2Falerts%2Fnlrb-explains-what-employer-rules-are-unlawful-and-how-to-make-them-lawful.md&text=) - [](https://www.facebook.com/sharer/sharer.php?u=https%3A%2F%2Fwimlaw.com%2Falerts%2Fnlrb-explains-what-employer-rules-are-unlawful-and-how-to-make-them-lawful.md) - [](https://www.linkedin.com/sharing/share-offsite/?url=https%3A%2F%2Fwimlaw.com%2Falerts%2Fnlrb-explains-what-employer-rules-are-unlawful-and-how-to-make-them-lawful.md) - [](mailto:?subject=NLRB%20Explains%20What%20Employer%20Rules%20Are%20Unlawful%20and%20How%20to%20Make%20Them%20Lawful) ## Related Content [ ![Disparate Impact Theory webinar promo graphic](https://wimlaw.com/media/yootheme/cache/78/WimLaw-Webinar-Promo-Slide-7890eebf.jpg) ](https://wimlaw.com/index.php?option=com_content&view=article&id=1581:disparate-impact-theory-discrimination&catid=221) ### [Status of Disparate Impact Theory of Discrimination – Hiring Procedures Disproportionately Affecting One Racial or Sexual Group Over Another](https://wimlaw.com/index.php?option=com_content&view=article&id=1581:disparate-impact-theory-discrimination&catid=221) [Webinars: Employment Law "Hot Topics"](https://wimlaw.com/index.php?option=com_content&view=category&id=221) [Read more](https://wimlaw.com/index.php?option=com_content&view=article&id=1581:disparate-impact-theory-discrimination&catid=221) [ ![promo graphic, Navigating the New Legal Minefield of Automated HR](https://wimlaw.com/media/yootheme/cache/0a/april-2026-WimLaw-Webinar-Promo-Slide-0a7fcf67.jpg) ](https://wimlaw.com/index.php?option=com_content&view=article&id=1572:automated-hr-legal-minefield&catid=221) ### [Navigating the New Legal Minefield of Automated (AI Driven) HR](https://wimlaw.com/index.php?option=com_content&view=article&id=1572:automated-hr-legal-minefield&catid=221) [Webinars: Employment Law "Hot Topics"](https://wimlaw.com/index.php?option=com_content&view=category&id=221) [Read more](https://wimlaw.com/index.php?option=com_content&view=article&id=1572:automated-hr-legal-minefield&catid=221) [ ![how labor law changed in 2025](https://wimlaw.com/media/yootheme/cache/d9/WimLaw-Webinar-Promo-Slide-v2-d9198036.jpg) ](https://wimlaw.com/index.php?option=com_content&view=article&id=1525:2025-labor-law-changes&catid=221) ### [Top 10 Most Important Labor and Employment Law Changes in 2025](https://wimlaw.com/index.php?option=com_content&view=article&id=1525:2025-labor-law-changes&catid=221) [Webinars: Employment Law "Hot Topics"](https://wimlaw.com/index.php?option=com_content&view=category&id=221) [Read more](https://wimlaw.com/index.php?option=com_content&view=article&id=1525:2025-labor-law-changes&catid=221) ## Get Email Updates Receive newsletters and alerts directly in your email inbox. Sign up below. ## Recent Content [ Alerts ](https://wimlaw.com/index.php?option=com_content&view=category&id=52) [ ![ai, human reach out](https://wimlaw.com/media/yootheme/cache/f1/igor-omilaev-FHgWFzDDAOs-unsplash-f12346e8.jpg) ](https://wimlaw.com/index.php?option=com_content&view=article&id=1582:fcra-litigation-challenges-employers-ai-hiring&catid=53)### [FCRA Litigation Challenges Employers’ Use of AI Hiring Platforms](https://wimlaw.com/index.php?option=com_content&view=article&id=1582:fcra-litigation-challenges-employers-ai-hiring&catid=53) [Employment Law Newsletter: A Monthly Report On Labor Law Issues](https://wimlaw.com/index.php?option=com_content&view=category&id=53) A January 20, 2026, class action filed against Eightfold AI, Inc. in California is sending shockwaves through the employer and AI community… [Read more](https://wimlaw.com/index.php?option=com_content&view=article&id=1582:fcra-litigation-challenges-employers-ai-hiring&catid=53) [ ![danger sign, skull](https://wimlaw.com/media/yootheme/cache/01/mikael-seegen-jX6WXNkvsPs-unsplash-01c1ebef.jpg) ](https://wimlaw.com/index.php?option=com_content&view=article&id=1584:ai-research-discovery-requests-dangers&catid=53)### [The Dangers of Employers Using AI Research Tools as to Discovery Requests from Plaintiffs](https://wimlaw.com/index.php?option=com_content&view=article&id=1584:ai-research-discovery-requests-dangers&catid=53) [Employment Law Newsletter: A Monthly Report On Labor Law Issues](https://wimlaw.com/index.php?option=com_content&view=category&id=53) A second “bombshell” affecting HR pertaining to AI is a federal court ruling in New York, that a defendant’s use of AI in researching and p… [Read more](https://wimlaw.com/index.php?option=com_content&view=article&id=1584:ai-research-discovery-requests-dangers&catid=53) [ ![CHAT GPT](https://wimlaw.com/media/yootheme/cache/64/emiliano-vittoriosi-fvxNerA8uk0-unsplash-64a16be4.jpg) ](https://wimlaw.com/index.php?option=com_content&view=article&id=1585:ai-employer-protection&catid=53)### [Two Subsequent Cases Protect Defendant’s Use of AI as Subject to Work-product Protection](https://wimlaw.com/index.php?option=com_content&view=article&id=1585:ai-employer-protection&catid=53) [Employment Law Newsletter: A Monthly Report On Labor Law Issues](https://wimlaw.com/index.php?option=com_content&view=category&id=53) Soon after the deciding of the above-discussed case on February 17, 2026, in U.S. v. Heppner, a criminal case in the District Court for the… [Read more](https://wimlaw.com/index.php?option=com_content&view=article&id=1585:ai-employer-protection&catid=53) [ ![avoid, wave away](https://wimlaw.com/media/yootheme/cache/6f/priscilla-du-preez-NQTphr4Pr60-unsplash-6fb4df83.jpg) ](https://wimlaw.com/index.php?option=com_content&view=article&id=1586:employer-avoid-waiving-privileges-ai-research&catid=53)### [Is There Anything an Employer Can Do to Avoid Waiving Privileges in Using AI Research Tools?](https://wimlaw.com/index.php?option=com_content&view=article&id=1586:employer-avoid-waiving-privileges-ai-research&catid=53) [Employment Law Newsletter: A Monthly Report On Labor Law Issues](https://wimlaw.com/index.php?option=com_content&view=category&id=53) There are no easy answers to the above question, but some general observations will nevertheless be made. First, the New York district cou… [Read more](https://wimlaw.com/index.php?option=com_content&view=article&id=1586:employer-avoid-waiving-privileges-ai-research&catid=53) [ ![ai visualization](https://wimlaw.com/media/yootheme/cache/45/milad-fakurian-5yWtM3M3JKM-unsplash-45306e6d.jpg) ](https://wimlaw.com/index.php?option=com_content&view=article&id=1587:ai-legal-recommendations&catid=53)### [Suggestions on Use of AI](https://wimlaw.com/index.php?option=com_content&view=article&id=1587:ai-legal-recommendations&catid=53) [Employment Law Newsletter: A Monthly Report On Labor Law Issues](https://wimlaw.com/index.php?option=com_content&view=category&id=53) Perhaps the starting point is to look at the type of AI platforms generally available. At a recent conference about AI use for HR, speaker… [Read more](https://wimlaw.com/index.php?option=com_content&view=article&id=1587:ai-legal-recommendations&catid=53) [ ![june 2026 legal immigration webinar promo graphic](https://wimlaw.com/media/yootheme/cache/45/june-2026-webinar-immigration-453d45bc.jpg) ](https://wimlaw.com/index.php?option=com_content&view=article&id=1583:worksite-enforcement-tps-parole&catid=221)### [Worksite Enforcement and TPS and Parole Status Update](https://wimlaw.com/index.php?option=com_content&view=article&id=1583:worksite-enforcement-tps-parole&catid=221) [Webinars: Employment Law "Hot Topics"](https://wimlaw.com/index.php?option=com_content&view=category&id=221) The webinar will cover how to deal with a worksite enforcement action and various types of immigration enforcement activities. The webinar… [Read more](https://wimlaw.com/index.php?option=com_content&view=article&id=1583:worksite-enforcement-tps-parole&catid=221) ### Additional Legal Resources [### Newsletter Explore ](https://wimlaw.com/publications/newsletters) [### Books Explore ](https://wimlaw.com/publications/books) [### Alerts Explore ](https://wimlaw.com/alerts) [### Articles Explore ](https://wimlaw.com/articles) [### Audits Explore ](https://wimlaw.com/audits) [### Events Explore ](https://wimlaw.com/events) ## Schema ```json { "@context": "https://schema.org", "@type": "BreadcrumbList", "itemListElement": [ { "@type": "ListItem", "position": 1, "name": "Home", "item": "https://wimlaw.com" }, { "@type": "ListItem", "position": 2, "name": "Alerts", "item": "https://wimlaw.com/alerts" }, { "@type": "ListItem", "position": 3, "name": "NLRB Explains What Employer Rules Are Unlawful and How to Make Them Lawful", "item": "https://wimlaw.com/alerts/nlrb-explains-what-employer-rules-are-unlawful-and-how-to-make-them-lawful" } ] } ```