Over the past several years, EmployNews has reported dozens of cases involving challenges by the National Labor Relations Board’s Office of the General Counsel to what appeared to be standard employee handbook provisions. In these cases, the General Counsel has contended that the polices violate employees’ rights to engage in protected concerted activity under Section 7 of the NLRA. Concerted activity means two or more employees discussing or taking action with regard to terms and conditions of work.

These cases, and perhaps more importantly the General Counsel’s shifting view on specific handbook policies, have caused significant confusion among employers that have struggled to predict what is and what is not acceptable policy language. In an attempt to address these concerns, last month the NLRB’s Office of the General Counsel released a memorandum that attempts to explain the difference between acceptable and unacceptable handbook provisions under Section 7, including specific examples of language that has and has not passed NLRB muster.

The memorandum covers a variety of polices, including employee confidentiality, social media use, disciplinary offenses and workplace communications. The General Counsel states at the beginning of the memorandum that most Section 7 violations do not involve situations where the polices have been written to deter unionization. Instead, they involve polices of general application that could be read to deter concerted activity. The General Counsel takes a very broad view of such deterrent effects, concluding that handbook language that has been standard for decades deters employees’ NLRA rights.

The examples used in the memorandum follow recent NLRB litigation. For example, the General Counsel classifies handbook provisions prohibiting disparaging, harassing, slanderous or libelous comments about other employees as unacceptable, because these terms could be interpreted to include complaints about working conditions. Similarly, polices that prohibit photography or recording in the workplace violate Section 7 because they could prevent employees from documenting unsafe working conditions.

The memorandum states that the General Counsel’s analysis of handbook policies includes their context and placement in the handbook. To use the above examples, a policy prohibiting harassing or disparaging comments may be acceptable if it is part of the handbook’s discrimination and harassment policy. A ban on photography that is part of a hospital’s patient privacy policy would also meet with the General Counsel’s approval.

The General Counsel’s memorandum concludes with provisions from the Wendy’s International handbook found illegal by the General Counsel, and replacement language agreed upon as part of the settlement agreement with the employer. These examples make clear that each handbook policy must be carefully reviewed to determine if it could be read to apply to Section 7 rights, and to include individual disclaimers from such effects if necessary.

The memorandum fails to address employers’ concerns that the General Counsel shifts its position on acceptable policy language, adopting more restrictive interpretations over time. There is no guarantee that this memorandum will serve as more than a snapshot of the General Counsel’s position in 2015. The memorandum itself contains indications of this shift in interpretation. For example, it states that employers cannot impose a blanket prohibition against employees walking off the job, because of their rights to engage in lawful job actions. However, in its acceptable alternative section, the memorandum does not state that standard “no call, no show” attendance provisions meet this test. As with many handbook policies, employers are left to wonder whether the General Counsel will conclude that such standard language now violates employees’ Section 7 rights.