National Labor Relations Board General Counsel Richard Griffin said he intends to issue a guidance memorandum on employee handbook rules in March. This could be a helpful step for employers seeking guidance on what constitutes a lawful policy under the NLRA.

Speaking at the February Midwinter Meeting of the American Bar Association Section of Labor and Employment Law Committee on the Development of the Law under the NLRA. Griffin also noted he intends to include, with the memorandum, several rules he previously has determined are lawful. He did not disclose what subjects the sample rules will cover.

Although the General Counsel plans to issue a set of “model” rules, they only will be “facially valid”. UnderLutheran Heritage Village – Livonia, 343 NLRB 646 (2004), a rule or policy violates the National Labor Relations Act if: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule is promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights. Even a rule that is valid on its face, therefore, can be applied improperly, resulting in a violation.

Most of the litigation at the NLRB over employer rules and policies has focused on the “reasonably construe” test, and how the rule or policy has been applied to an employer’s employees is a factor the Board may consider in determining whether employees would reasonably construe the language to prohibit Section 7 activity. Thus, if it is shown by an opposing party that the otherwise valid rule has been applied in a way to prohibit or limit Section 7 activity, the rule – even a model rule approved by the General Counsel — still may be found unlawful under the NLRA.

Education for all who are expected to enforce rules and policies about the scope of the rule’s prohibitions will still be critical.