On March 18, 2015, NLRB General Counsel Richard F. Griffin, Jr. issued a report that presented recent case developments concerning employee handbook rules. He made the point right up front that, “… the law does not allow even well-intentioned rules that would inhibit employees from engaging in activities protected by the [National Labor Relations] Act.” The NLRB defines protected concerted activity as the right of employees to act together to improve their working conditions and pay with or without a union. Employee rights today are the sum of decisions made in the original 1935 National Labor Relations Act, appellate courts, the U.S. Supreme Court and NLRB guidances and decisions.
NLRB on the Lookout for the Big Chill
The NLRB can scrutinize employee handbooks in private-sector unionized and non-unionized settings. Historically, the scrutiny was prompted by labor disputes arising during collective bargaining events. Over the last few years, the NLRB has vigorously pursued NLRA violations against non-unionized employers as a result of employee complaints about unfair labor practices. For example, there is a case in which a non-unionized employee was fired for engaging in concerted action with other employees by complaining about the employer on social media. After the complaint was filed, the NLRB reviewed the handbook policy and ruled in favor of the employee.
The rationale for NLRB involvement in these types of cases is NLRA Section 7, which gives employees the right to join labor organizations, bargain collectively and/or engage in concerted activities for mutual aid and protection. The NLRB is charged with enforcing and interpreting the NLRA. It has the right to review private employers’ employee handbooks to ascertain compliance with the law.
The NLRB is on the lookout for employer rules that restrict protected concerted activity and/or Section 7 of the NLRA. In the eyes of the NLRB, there cannot be one word or phrase in the employee handbook that chills an employee’s right to engage in protected concerted activities — discussing wages and benefits, and conditions of employment. In the NLRB report, Griffin discussed the fact that most workplace policies in violation of Section 7 were due to language that could be interpreted as chilling.
Getting the Language Right
The NLRB guidance report addresses various categories of common handbook language violations. Union avoidance depends on getting the language legally correct in every category when drafting an employee handbook. One category is confidentiality policies. You cannot prohibit employees from discussing hours, pay rates, workplace complaints and other personal information. Cases involving social media have been mostly confidentiality cases because employees discuss protected concerted activity using social technologies.
Another common area of violation is employee conduct toward their employer and supervisors. You cannot prohibit employees from being rude or disrespectful to supervisors even if the behavior could harm business reputation, but you can prohibit employees from disparaging products or services or being rude to customers and vendors.
Yet another common violation is trying to ban employees from taking pictures or making recordings while they are on company property. However, there are instances where some limitations are allowed for competition purposes or to protect the privacy of customers or clients. Other categories of concern for union avoidance include policies on conduct toward fellow employees; interactions with third parties; restrictions on the use of company logos, copyrights and trademarks; restrictions on leaving work; and conflict-of-interest policies.
Assess Every Word
The message is clear: Employers need to review their current employee handbooks and workplace policies word for word in relation to NLRB handbook policies. Writing an employee handbook is not a simple matter anymore. Each word must be assessed as to whether it has a chilling effect, and that requires understanding everything it takes to be union proof. After the NLRB-compliant handbook is written or revised, the process is still not completed. It is just as important to communicate the new handbook content to employees across the organization.
NOTE: The UnionProof team at Projections does not provide legal advice. Please reach out to your labor attorney for specifics on handbook compliance. Don’t have legal counsel? Just let us know; we work with the best in the business and are happy to recommend someone!