NLRB Highlights Questionable Employee Handbook Provisions

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On March 18, the National Labor Relations Board’s (NLRB) General Counsel released a report prompted by recent cases involving challenges to employee handbook policies. The report notes that even well-intentioned rules that prohibit employees from engaging in protected conduct, or can be reasonably construed to prohibit such activity, are unlawful.

Based upon the NLRB’s memo, here are 10 key employee handbook provisions that an employer should review and revise in order to ensure compliance with the National Labor Relations Act (NLRA):

1. Confidentiality Policies

A handbook rule requiring confidentiality and prohibiting the disclosure of employee information regarding wages, hours, working conditions, terms of employment and employee contact information may be unlawful. This is because it infringes on the right to discuss these work-related issues not only with fellow employees, but also potentially with union representatives.

However, the NLRB notes that a rule prohibiting disclosure of the employer’s or a customer’s confidential information, and not referencing employee information, is lawful because an employer has a legitimate interest in maintaining the privacy of its business information.

2. Employee Conduct Toward the Employer

A work rule banning employers from criticizing or protesting the employer’s labor policies or treatment of employees may violate the NLRA. This also is true of rules that prohibit employees from engaging in disrespectful, negative, inappropriate or rude conduct towards the employer because employees have a right to criticize management in a public forum.

However, a rule requiring employees to be respectful and professional towards co-workers, clients or competitors is lawful because an employer has a legitimate business interest in having employees act courteously and professionally in dealings with third parties. Rules prohibiting insubordination, threatening and intimidating behavior also do not violate Section 7 rights under the NLRA.

3. Employee Conduct Toward Co-Workers

Employees have a right to engage in heated discussions regarding unionization, the employer’s labor policies or the employer’s treatment of employees or criticisms supervisors and managers. As a result, a rule that prohibits such workplace discussions may run afoul of the NLRA.

However, a rule requiring employees to be respectful toward co-workers and customers, to engage in professional behavior, and to refrain from violent, discriminatory, abusive, offensive, harassing, threatening or intimidating conduct may be lawful because it prohibits harassment and discrimination and not protected criticisms of the employer.

4. Communications with Third Parties

A rule prohibiting employees from speaking with the news media, government agencies or other third parties regarding company matters, employment concerns or labor relations is prohibited because employees have a right to discuss wages, benefits and the terms and conditions of employment.

Nonetheless, an employer may prohibit employees from speaking on the company’s behalf regarding crisis situations because an employer has a right to ensure a consistent company response or message regarding such matters.

5. Intellectual Property Policies

A rule prohibiting employees from engaging in fair use of intellectual property and using the employer’s name and logo on union materials may be unlawful because employees are permitted to engage in non-commercial use to identify the employer if engaging in protected activity. However, an employer may prohibit employees from using its intellectual property for business/commercial reasons.

6. Restricting Use of Cameras and Personal Devices

A rule that prohibits employees from using a camera, taking a photograph or that bans the use of personal devices to do so may be unlawful because employees are permitted to use nonworking time to document health and safety violations and other protected concerted activity. An employer is permitted to maintain a rule banning employees from taking photographs that breach patient or co-worker privacy.

7. Restricting Employees from Leaving Work

An employer may not prohibit employees from walking off the job because such a rule can be interpreted to encompass the employee’s right to strike and walk out. However, a rule banning employees from leaving the employer’s property during work time without permission will not be viewed as covering employee strikes.

8. Conflict of Interest Policies

A broad rule prohibiting employees from taking “any action not in the employer’s best interest” may be unlawful because employees have a right to engage in protected conduct even if it conflicts with the employer’s interests. Notwithstanding this, a rule specifically preventing employees from engaging in competing businesses, being employed by customers, suppliers or competitors, and holding ownership or financial interests in outside companies is lawful because it does not apply to protected activity.

9. Handbook Disclosure Provisions

An employer may not prohibit employees from disclosing or sharing the handbook or employment policies with third parties because employees have a right to discuss their wages, hours and working conditions with co-workers, union representatives and government agencies.

However, a rule banning employees from reproducing, transmitting or photocopying the handbook for any business/commercial venture without management’s permission is lawful because employers have a right to prohibit disclosure of the handbook to competitors.

10. Social Media Policies

Some social media rules, such as prohibiting employees from making negative comments about the company or prohibiting employees from maintaining a blog related to their job may infringe upon protected rights under the NLRA.

However, an employer may prohibit negative comments about customers, require that employees be thoughtful in their posts, and ban threatening or obscene conduct or conduct which would violate the employer’s policies regarding discrimination and harassment.

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