NLRB General Counsel clamps down on policies prohibiting photos and use of company logo

Employer policies are still under fire by the Office of General Counsel of the National Labor Relations Board (NLRB). This time, the General Counsel issued an Advice Memorandum concluding that several of an employer’s policies were illegal, including those prohibiting the disclosure by employees of “confidential or non-public information” and prohibiting the use of the employer’s “logo, trademark, or graphics, or photographing or video recording the Employer’s facility.” According to the Board’s General Counsel, these policies were so broad that they could reasonably be construed by employees to prohibit them from engaging in protected concerted activity with regard to their wages, hours and working conditions (such as putting a company logo on a picket sign). This, despite the fact that the policies contained language stating that the company would not construe them in a way that would interfere or limit employees’ rights under the National Labor Relations Act (NLRA). The General Counsel was not convinced, noting that this “saving clause” was not enough to make the policies compliant with the NLRA.

Tips: Under the NLRA, the main risk of maintaining these kinds of broad policies is the potential liability for back pay if you terminate an employee for violating them. Other than that, the worst that could happen is that the Board could order an employer to change and republish the policy. You should evaluate whether you want to change your policy now to make it more specific, rather than being so broad as to potentially limit employee rights, or take the risk. If you choose to leave your policy “as is,” contact your Vigilant staff representative before disciplining or terminating an employee under these kinds of policies or learn more about ongoing counsel on this issue with Vigilant.