The Devil Is in the Details

04/29/2015 06:34 pm ET | Updated Jun 29, 2015

The National Labor Relations Act (NLRA) applies to most employers whether or not a union exists within the company. Protected concerted activity is not only related to union activity. Employees are allowed to complain about work conditions. The National Labor Relations Board (NLRB) continues to aggressively define protected, concerted activity. General Counsel, Richard J. Griffin recently compiled a report to provide employers guidance concerning work rules.

The report discusses the NLRB's opinion about the several categories of workplace rules. In general, broad statements prohibiting conduct are unlawful. For example, defining confidential as unauthorized disclosure could adversely affect the [Employer's] interests, image and reputation or compromise personal and private information of its members is unlawful because protesting wages and work conditions might adversely affect the Employer's image or reputation.

General Counsel Griffin's report begins with the Lutheran Heritage Livonia (2004) decision. The most significant part of the decision was the mere maintenance of a work rule may have an effect of quieting employees' concerns about work conditions and therefore violates the NLRA. An employer need not enforce a rule such as union activity is prohibited for the rule to be considered unlawful. Any rule employees would reasonably believe prohibited their right to concerted activity may be unlawful.

Overly broad rules regarding employee conduct can easily be viewed to ban protected criticism of management or the employer. Therefore, general statements encouraging respectful conduct are found to be unlawful. Lawful statements include those which require employees to work in a cooperative manner; be respectful toward customers; prohibiting insubordinate, threatening, intimidating, disrespectful or assaulting a manager, co-worker, customer or vendor.

However, Don't pick fights online and Don't make insulting, embarrassing, hurtful or abusive comments about co-workers online; even Don't use offensive, derogatory, or prejudicial comments are seen as unlawful because debate about concerted activity is often contentious and controversial and these prohibitions limits employees' ability to honestly discuss such subjects. A recent case, Pier Sixty, LLC and Hernan Perez (2015) found Pier Sixty unlawfully terminated the employment of Perez because of his social media comments which included obscene references directed at his supervisor, his supervisor's mother and his supervisor's entire family.

While the NLRB finds it lawful to Respect all copyright, trademarks and intellectual property laws, forbidding the use of company logos, trademarks, and graphics in social media is too broad of a restriction. Barring unauthorized pictures or videos on company property is also too broad. Employers need to tie banning any type recording to directly to a precise business need, such as patient privacy. Employers may bar cell phones during actual work time but not while on duty.

Walking off the job or leaving before the shift without permission may be a violation of the fundamental right to go on strike. Conflict of interest rules must also be detailed to be lawful. An employer can block employees from accepting gifts, competing or having financial interest in an outside business. However, broad statements, like may not engage in any action that is not in the best interest of the employer, is unlawful.

Employers can use these details to clarify the purpose and behavioral expectations needed to maintain a respectful and productive workplace.