This post is the third in a series providing guidance on federal rules regarding permissible and impermissible employer handbook policies and rules. See Guidance Regarding Confidentiality Rules here and regarding Employee Conduct Rules here. While the recent guidance was issued by the National Labor Relations Board (NLRB) found here, this guidance is applicable to both unionized and non-unionized employers. The National Labor Relations Act (NLRA) restricts all employers from issuing policies or rules – even if well-intentioned – that inhibit employees from engaging in activities protected by the act, such as discussing wages, criticizing management, publicly communicating about working conditions and discussing unionization.
“Use” Logos, Copyrights and Trademarks – Fair or Unfair?
The NLRB recognizes that employers have a right to protect their intellectual property, including logos, copyright and trademarks. However, that protection can only go so far. Specifically, the NLRB has determined that employees are allowed “fair use” for non-commercial purposes such as on picket signs, leaflets and other protest material. In establishing this rule, the NLRB has reasoned that employer’s proprietary interests are not implicated by employees’ use of the names, logos or trademarks when engaging in collective action under Section 7 of the NLRA. As such, a broad ban on use of company logos, copyrights or trademarks impinges on “fair use” and will be viewed with disfavor by the NLRB.
As has been repeated in prior posts, context always matters when evaluating employer policies, rules and handbooks. However, there are a few clear guidelines for employers when reviewing language as to use of logos, copyrights and trademarks:
• DO NOT impose a broad ban on any use of company logos, trademarks, graphics, or advertising materials in social media or otherwise.
• DO NOT impose a vague ban on use of “other people’s property,” such as trademarks “without permission.”
• DO NOT prohibit use of the employer’s name, logo or trademark. This impinges on employee’s right to work together, collectively, and organize.
• DO require employees to respect laws, permitting fair use.
Examples of Policies That Protect Intellectual Property While Permitting “Fair Use”
The NLRB has provided two examples of policies that strike the right balance. Employers should consider whether there provisions satisfy their concerns with protection of intellectual property and find ways to adjust, if necessary, to also allow employees’ fair use.
• “Respect all copyright and other intellectual property laws. 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.”
• “DO respect the laws regarding copyrights, trademarks, rights of publicity and other third-party rights. To minimize the risk of a copyright violation, you should provide references to the source(s) of information you use and accurately cite copyrighted works you identify in your online communications. DO not infringe on [Employer] logos, brand names, taglines, slogans, or other trademarks.”
These examples strike the right balance because they do not impose a strict ban on intellectual property. Rather, they remind employees of applicable law and provide guidance on how others’ intellectual property may be used property and lawfully.