NLRB General Counsel Shines Guideline Light on Employer Work Rules

Rules Restricting Use of Company Logos, Copyrights and Trademarks

While recognizing that employers have a right to protect their intellectual property, the Board's general counsel believes that an employer cannot restrict the fair use of the intellectual property in the exercise of employees' rights protected under the Act. The guidance memorandum notes that employees have a right to use the employer's name and logo on picket signs, leaflets and other protest material. Examples of unlawful rules concerning this issue include:

• Do not use any company logos, trademarks, graphics or advertising materials in social media.
• Do not use other people's property, such as trademarks, without permission in social media.
• Use of [the employer's] name, address or other information in your personal social media profile [is banned] ' In addition, it is prohibited to use [the employer's] logos, trademarks or any other copyrighted material.

On the other hand, the following rule has been found lawful:

For [the employer's] protection, as well as your own, it is critical that you show proper respect for the laws governing copyright, fair use of copyrighted material owned by others, trademarks and other intellectual property, including [the employer's] own copyrights, trademarks and brands.

Employer Rules Regarding Leaving Work

The guidance memorandum notes that one of the most fundamental rights employees have is the right to go on strike. Accordingly, the Board has determined rules that regulate when employees can leave work are unlawful if employees reasonably would read them to forbid protected strike actions and walkouts. Examples of unlawful rules include:

• Walking off the job is prohibited.
• Failure to report to your scheduled shift for more than three consecutive days without prior authorization or walking off the job during a scheduled shift is prohibited.

Examples of lawful rules include:

• Entering or leaving company property without permission may result in discharge.
• Walking off a shift, failing to report for a scheduled shift and leaving early without supervisor permission are also grounds for immediate termination.

The reasoning here is that in the absence of terms like “work stoppage” or “walking off the job,” a rule forbidding employees from leaving work without permission will not reasonably be read to encompass strikes.

Employer Conflict-of-Interest Rules

Employers frequently include codes of conduct, non-competition or non-solicitation agreements in their company policies. Some of these rules have come under close scrutiny by the Board. As a result, if an employer's conflict-of-interest rule would reasonably be read to discourage protest activity, boycotts or support for a union, the rule will be found unlawful. Thus, the following rule was considered unlawful:

• Employees may not engage in any action that is not in the best interest of the employer.

On the other hand, the following rule was found lawful:

• Employees must refrain from any activity or having any financial interest that is inconsistent with the company's best interest and also must refrain from activities, investments or associations that compete with the company, interferes with one's judgment concerning the company's best interests or exploits one's position with the company for personal gains.

Employer Takeaways

As the general counsel pointed out in his letter accompanying the guidance memorandum, even well-intentioned employer rules and policies can and do violate the Act. Thus, even though the Board's “logic” underlying the lawful and unlawful distinctions noted above is difficult to decipher, now is the time for employers to carefully review their employee handbooks, policies and other written procedures in light of these guidelines to avoid the potential of any unfair labor practice charge.

Thomas G. Servodidio chairs Duane Morris' Employment, Labor, Benefits and Immigration Practice Group, and also serves on the firm's Executive Committee. He is resident in the firm's Philadelphia office. Adam Keating is an associate in the Atlanta office. This article is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this article are those of the authors and do not necessarily reflect the views of the authors' law firm or its individual partner .

Last month, we noted that in an effort to “help employers to review their handbooks and other rules, and conform them if necessary, to ensure that they are lawful,” the National Labor Relations Board's (the Board) general counsel recently issued a 30-page memorandum setting forth guidance on employers' internal personnel policies to ensure compliance with the National Labor Relations Act (the Act). The report is relevant to nearly all private employers, regardless of whether they have union-represented employees.

While the guidance memorandum has no independent legal authority, it does signal to all employers (union and non-union) those areas that the general counsel's office will investigate in pursuing unfair labor practice charges. As we have seen over the last couple of years, the Board has become much more aggressive in pursuing charges against non-union companies for policy violations, and this guidance memorandum helps clarify the general counsel's position.

We conclude the discussion herein.

Rules Restricting Use of Company Logos, Copyrights and Trademarks

While recognizing that employers have a right to protect their intellectual property, the Board's general counsel believes that an employer cannot restrict the fair use of the intellectual property in the exercise of employees' rights protected under the Act. The guidance memorandum notes that employees have a right to use the employer's name and logo on picket signs, leaflets and other protest material. Examples of unlawful rules concerning this issue include:

• Do not use any company logos, trademarks, graphics or advertising materials in social media.
• Do not use other people's property, such as trademarks, without permission in social media.
• Use of [the employer's] name, address or other information in your personal social media profile [is banned] ' In addition, it is prohibited to use [the employer's] logos, trademarks or any other copyrighted material.

On the other hand, the following rule has been found lawful:

For [the employer's] protection, as well as your own, it is critical that you show proper respect for the laws governing copyright, fair use of copyrighted material owned by others, trademarks and other intellectual property, including [the employer's] own copyrights, trademarks and brands.

Employer Rules Regarding Leaving Work

The guidance memorandum notes that one of the most fundamental rights employees have is the right to go on strike. Accordingly, the Board has determined rules that regulate when employees can leave work are unlawful if employees reasonably would read them to forbid protected strike actions and walkouts. Examples of unlawful rules include:

• Walking off the job is prohibited.
• Failure to report to your scheduled shift for more than three consecutive days without prior authorization or walking off the job during a scheduled shift is prohibited.

Examples of lawful rules include:

• Entering or leaving company property without permission may result in discharge.
• Walking off a shift, failing to report for a scheduled shift and leaving early without supervisor permission are also grounds for immediate termination.

The reasoning here is that in the absence of terms like “work stoppage” or “walking off the job,” a rule forbidding employees from leaving work without permission will not reasonably be read to encompass strikes.

Employer Conflict-of-Interest Rules

Employers frequently include codes of conduct, non-competition or non-solicitation agreements in their company policies. Some of these rules have come under close scrutiny by the Board. As a result, if an employer's conflict-of-interest rule would reasonably be read to discourage protest activity, boycotts or support for a union, the rule will be found unlawful. Thus, the following rule was considered unlawful:

• Employees may not engage in any action that is not in the best interest of the employer.

On the other hand, the following rule was found lawful:

• Employees must refrain from any activity or having any financial interest that is inconsistent with the company's best interest and also must refrain from activities, investments or associations that compete with the company, interferes with one's judgment concerning the company's best interests or exploits one's position with the company for personal gains.

Employer Takeaways

As the general counsel pointed out in his letter accompanying the guidance memorandum, even well-intentioned employer rules and policies can and do violate the Act. Thus, even though the Board's “logic” underlying the lawful and unlawful distinctions noted above is difficult to decipher, now is the time for employers to carefully review their employee handbooks, policies and other written procedures in light of these guidelines to avoid the potential of any unfair labor practice charge.

Thomas G. Servodidio chairs Duane Morris' Employment, Labor, Benefits and Immigration Practice Group, and also serves on the firm's Executive Committee. He is resident in the firm's Philadelphia office. Adam Keating is an associate in the Atlanta office. This article is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this article are those of the authors and do not necessarily reflect the views of the authors' law firm or its individual partner .