Carefully tailor codes of conduct.

• Author: Brucker, Denise
• Position: Ethics Corner

* Nearly every company maintains a collection of basic standards and expectations commonly referred to as a code of conduct.

Additionally, most companies maintain separate, more detailed policies that address the specific areas of professionalism, human resources rules, anti-harassment and anti-bullying, social media, confidentiality, and standards peculiar to certain industries or job functions.

But a company must be exceptionally careful about the language that it uses in describing and proscribing prohibited behavior to avoid running afoul of federal labor law.

For example, the National Labor Relations Board has determined that the following common workplace conduct rules are unlawful:

* Be respectful of others and the company.

* Do not make insulting, embarrassing, hurtful or abusive comments about other company employees online and avoid the use of offensive, derogatory or prejudicial comments.

* Do not send unwanted, offensive or inappropriate e-mails.

* Do not make personal insults, use obscenities or engage in any conduct that would be unacceptable in a professional environment.

* Material that is fraudulent, harassing, embarrassing, sexually explicit, profane, obscene, intimidating, defamatory, or otherwise unlawful or inappropriate may not be sent by email.

* Misconduct includes false accusations against the company and/or against another employee or customer.

Many compliance, human resources and legal professionals are still grappling with the board's narrow view of what constitutes lawful restrictions on bad behavior.

So why did the board deem these seemingly legitimate policies unlawful? Because they prohibited--or could reasonably be read to prohibit--employees from engaging in protected concerted criticism of the company's labor policies or treatment of employees, or they prohibited employees from arguing with each other about unions, management and their terms and conditions of employment.

The National Labor Relations Board's general counsel provided the following explanation in a memorandum issued March 18, 2015, titled, "Report of the General Counsel Concerning Employer Rules."

It says: "According to the board, criticizing the company and its managers, and arguing about labor policies and workplace conditions is protected activity under Section 7 of the National Labor Relations Act. This protection applies to all employees, unionized or not."

The general counsel's memo further expounded that policies that prohibit...