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Work Rules/Handbooks - Examples of Lawful and Unlawful Language

Author: Melissa Gonzalez Boyce, XpertHR Legal Editor

Work rules and employee handbooks are scrutinized by the National Labor Relations Board (NLRB) in its continued enforcement efforts against rules it deems overbroad and infringing on an employee's Section 7 rights. Employers, union and nonunion alike, must remember that Section 7 of the National Labor Relations Act (NLRA) provides all employees with the right to engage in protected concerted activity (i.e., discussions with co-workers) to improve their terms and conditions of employment, including wages, hours and working conditions. Therefore, any work rule or handbook statement that is deemed overbroad and that may reasonably be construed to prohibit or restrict an employee's right to engage in such activity will be considered unlawful by the NLRB.

To guide employers, the NLRB Office of the General Counsel released a report that summarizes several NLRB cases and provides its stance on rules and policies frequently at issue. In particular, the report provides examples of lawful and unlawful language for each policy along with the rationale behind the NLRB's position. The report also notes that the context of a work rule (e.g., is the language excerpted from a larger policy?) can change the meaning of the rule. Importantly, the report reminds employers that rules that prohibit employees from engaging in protected conduct, or can be reasonably construed to prohibit such activity, are unlawful, regardless of how well-intentioned they may be.

The following chart addresses the work rules/handbook policies along with some examples of unlawful and lawful language, as drawn from the NLRB report.