On March 18, 2015, the General Counsel to the National Labor Relations Board (“the Board”) released a report that attempts to clarify when the Board will find that employee handbook provisions violate the National Labor Relations Act (“NLRA”). This report should be especially of interest to nonunion employers, which may be more likely to be targeted regarding handbook provisions than union employers.
The Board takes the position that many provisions in employee handbooks may chill employees in their right to engage in protected concerted activity; in other words, to be able to talk to one another about terms and conditions of employment, and to talk to management and third parties, such as unions, about such issues. The employee policies most often at issue include:
- Policies that require employees to be respectful to management
- Policies prohibiting employees from saying anything negative about the company
- Policies that require employees not to disclose information
- Social media policies
- Policies prohibiting contact with the media
- Policies prohibiting the use of company logos
- Policies about recording and taking unauthorized photographs
- Policies about walking off the job
- Conflict of interest policies
The report contains examples of the above policies that the Board has approved, in particular cases, and examples of policies that were not approved. Often, there appears to be little difference between the two. For example, a policy prohibiting “walking off the job” was found to be unlawful because it was a broad prohibition that could be read to include protected strikes. On the other hand, the Board found lawful a policy stating: “Walking off shift, failing to report for a scheduled shift and leaving early without supervisor permission are also grounds for immediate termination.”
When drafting policies to be acceptable to the Board, keep in mind the following:
- Broad prohibitions often will be found unlawful.
- If you must include a broad prohibition, include enough examples to show that the prohibition should be taken in context. For example, a broad prohibition against being disrespectful to a supervisor or manager probably would be found by the Board to violate the law. The Board has found lawful, however, a provision that mentioned disrespect to management in a list of prohibited actions that included insubordination, threats, intimidation, or assault against a manager or supervisor. The Board reasoned that the context showed that the provision dealt with very serious misconduct, and that accordingly, an employee would not understand it to include criticism of management.
- Try to make prohibitions as narrow as possible. For example, the Board found “Do not send unwanted, offensive, or inappropriate e-mails” to be unlawful. By contrast, “No use of racial slurs, derogatory comments, or insults” was found to be a lawful prohibition.
Why Is This Important? If the Board finds that your company’s policies violate the NLRA, it can require you to change them, and also can require you to post a notice for a period of 60 days, indicating that your company violated the NLRA. More importantly, if the Board finds that your company terminated an employee on the basis of an unlawful provision in an employee handbook, it can require that the employee be reinstated, and your company could be on the hook for back wages and any other compensation needed to make the employee whole. Finally, if your company has to post that it violated the NLRA, the posting could spur employees into thinking they need a union to assist them.
The full text of the report is available at the Board’s website at www.nlrb.gov. If you have any questions about this or any other employment or labor law issue, please contact Whitney Rahman at (717) 509-7237 or firstname.lastname@example.org.