April 2, 2015
NLRB Issues Guidance Outlining Unlawful Employee Handbook Provisions
On March 18, 2015, the General Counsel of the National Labor Relations Board (NLRB) issued a report providing guidance to employers concerning certain types of employee handbook provisions which are frequently found to be unlawful by the Board. It is certainly worthwhile for employers and lawyers who counsel employers to review this NLRB guidance document, which explains and gives examples of handbook provisions which are considered lawful and unlawful. No doubt, many employers and employers' lawyers will find themselves scratching their heads at some of the examples and reasoning, and many employers will recognize that their handbooks contain several potentially troublesome provisions.
In general, the NLRB has been actively seeking to protect employees' rights under the National Labor Relations Act (NLRA) to engage in "protected concerted activities," which include the right to discuss wages, hours, and other terms and conditions of employment with co-workers and with non-employees. Employee handbook policies which restrict these rights, or which "chill" them because an employee may reasonably conclude that his lawful activity violates a company policy, are unlawful. What is the effect to an employer if its handbook contains provisions which the NLRB deems unlawful? More and more cases are being brought to the attention of the NLRB, and more and more charges of unfair labor practices are being lodged. The NLRB cannot assess fines and penalties for violations, although it can require the employer to take affirmative conduct to remedy a violation. In addition, if an employee has been disciplined or terminated for violating an unlawful provision, the NLRB can order reinstatement of employment, with back pay, as well as other made-whole remedies.
And remember... these Section 8 "protected concerted activity" rights apply not just in union workplaces, but they also apply equally in non-union workplaces.
The recent NLRB guidance discusses, gives specific examples of, and explains the Board's reasoning related to, the following types of common employee handbook provisions: (1) confidentiality requirements; (2) employee conduct toward the employer or supervisors (e.g., being "disrespectful" or "criticizing"); (3) employee conduct toward fellow employees; (4) employee interactions with third parties; (5) employee use of company logos, copyrights and trademarks; (6) restrictions on photography and recording at the workplace; (7) certain restrictions on employees' use or access to cell phones and similar devices; (8) restrictions on employees leaving work; (9) conflict of interest rules; and (10) restrictions on solicitations and distributions at work.
It is beyond the scope of this news item to attempt to discuss each of these topics in detail. However, as noted above, it would be wise and prudent for employers and their lawyers to locate and review the March 18, 2015 NLRB guidance document.