I didn’t foresee the day when words like “disrespectful, rude, disruptive or inappropriate” when used in an Employee Handbook would potentially land a business in hot water with the National Labor Relations Board (NLRB). The “what?” you say. The NLRB is the federal government agency charged with enforcing provisions of the National Labor Relations Act (NLRA). “Doesn’t that law deal just with unions and collective bargaining?” you might think. Yes, it does, but the NLRA applies to all employers, meaning that the NLRB has jurisdiction over all employers as well.
In mid-March, a Memorandum from the NLRB’s General Counsel indicated that many commonly included provisions found in Employee Handbooks have the potential to violate Section 7 of the National Labor Relations Act. You can read the full Memorandum on the NRLB website (listed as GC 15-04) or download the PDF here. The Memorandum intends to provide “guidance” to employers. It probably does that but it will has lawyers and HR professionals scratching their heads.
The Memorandum attempts to summarize case law and NLRB rulings. The good news about the Memorandum is that it provides many examples of policies which could violate Section 7 rights, while at the same time providing suggestions that can convert a bad policy to a good one.
What is the NLRA and why is it important to me?
The NLRA, which has been around since 1935, is a federal law designed to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices. Many employers think that the NLRA applies only to businesses which have union employees. While many of the NLRA’s provisions relate to unions and collective bargaining, the NLRA applies to all businesses, large and small.
Of particular to concern to the General Counsel or Business Owner are provisions commonly found within an Employee Handbook that would ban, limit or have a chilling effect on employees in the exercise of their Section 7 rights. Section 7 guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” as well as the right “to refrain from any and all such activities.” For non-union employers, the language, “to engage in other concerted activities for the purpose of …other mutual aid or protection,” is the broad language which firmly attaches the NLRA to non-union employers.
Handbook Provisions Requiring Special Review
In light of the Memorandum, employers should review their Handbooks to make sure that Handbook provisions don’t violate Section 7 rights. Areas that were specifically addressed in the Memorandum are policies which relate to: confidentiality; employee conduct towards the Company and Supervisors; employee conduct rules; employee interactions with third parties; rules regulating third party communications; provisions restricting the use of employer logos, copyrights and trademarks; rules which restrict photography and recording; rules restricting employees from leaving work; and conflict of interest rules. While these types of policies are specifically addressed, there may be other provisions in your Handbook that may require modification as well.
How the NLRB Will Look at Your Handbook
As the Memorandum notes, “the most obvious way a rule would violate Section 8(a)(1) is by explicitly restricting protected concerted activity; by banning union activity for example.” We see very few Handbooks that contain such explicit language.
According to the Memorandum, a policy will be found unlawful if, “(1) employees would reasonably construe the rule’s language to prohibit Section 7 activity; (2) the rule was promulgated in response to union or other Section 7 activity; or (3) the rule was actually applied to restrict the exercise of Section 7 rights.” Of these examples, the first and third may be the more difficult to detect. What should you look for when reviewing your Handbook?
Things to Consider When Reviewing Your Handbook
- Is a particular provision overly broad to the point where it proscribes both lawful and unlawful activities? Blanket provisions that have the effect of limiting free speech rights, discussing employment related grievances with others within and without the company or similar activity is subject to challenge. Overly broad language without additional examples or context should be reconsidered.
- Does a policy limit an employee’s right to criticize or protest an employer’s labor policies or treatment of employees? Do policies restrict an employee’s right to criticize in a public forum? Overly broad language like “disrespectful,” “inappropriate,” or “rude” without specific examples or context should be avoided. Similarly, does language limit an employee’s ability to honestly discuss these issues?
- Does a policy restrict an employee’s right to communicate with the media or others about wages, benefits or other terms and conditions of employment? If so, the language needs to be limited or examples of lawful behavior added.
- Does any policy restricting the use of company logos, copyrights or trademarks limit an employee’s ability to use the company name and logo on a picket sign, leaflet or other protest material? If so, the language is likely overbroad and need to be limited or examples added. The same would be true with respect to taking pictures or video on company property, especially protected images intended by the employee to document health and safety violations or unfair labor practices.
- Could a policy have the effect of limiting or inhibiting an employee from discussing with others work hours, wages, benefits or other conditions of employment; job safety or hazardous conditions or illegal activity? Is the use of company names, logos or trademarks on picket signs or similar protest activity restricted? Do any policies have the potential to restrict an employee’s right to criticize management or other employees? These would be red flags and require a closer look to see if additional language or examples in the Handbook provide enough context to save the provision or if additional language or examples might be needed to save it.
Conclusion: What Should You Do?
As noted above, there is good news and bad news about the Memorandum. The bad news is that many Handbooks contain general language which the NLRB would determine to restrict an employee’s exercise of Section 7 rights. The good news is that the Memorandum provides examples of language that will not restrict the exercise of these rights. The Memorandum also makes it clear that even language that might not work on its face can be cured with the addition of examples or context.
Take a look at the Memorandum. Review your Handbook, and as you do, ask the questions we raise above. Try to identify areas in your Handbook that might be subject to challenge, and try to reword them or add examples. And, at any step along the way, call us. We are very happy to help.
In most instances, a policy that might be considered overbroad or vague can be saved with the addition of a few more words or specific examples that add context and meaning to the policy. This shouldn’t be an overhaul of your Handbook, but it ought to involve a review and update.
Author: Carl Sniffen