NLRB Provides Handbook Language Guidance
- By Your mom
- •
- 12 Aug, 2015
The General Counsel for the National Labor Relations Board issued a report providing
guidance to employers when drafting employee handbooks. Report. (GC 15-04). Over the past
few years many standard handbook provisions have been found to violate section 7 of the
National Labor Relations Act. That section allows both union and non-union employees to
engage in protected concerted activity for their mutual aid and protection. Employers have
struggled to keep current with the rapidly changing requirements, and have often found that their
good faith efforts to comply fall short of the Board’s expectations. The new report sheds greater
light on what has become an extremely nuanced approach to handbook drafting.
The report dissects numerous case decisions and tries to explain the subtle differences
between lawful and unlawful language. It covers the major areas which have been the focus of
recent litigation. These include confidentiality rules, employee conduct toward the company and
supervisors, employee conduct toward co-workers, employee interaction with third parties, use
of company logos and trademarks, restrictions on video and audio recordings at work,
restrictions on leaving work, and conflict of interest rules. Non-union employers in particular
will likely be astonished when reading the Board’s position on these issues, but failure to comply
can lead to serious repercussions.
While lengthy, employers are encouraged to read the full report, however, the following
summary provides a flavor for the types of issues companies need to be aware of when drafting
employee handbooks. Further, if your handbook has not been reviewed in the last year, it is
likely to be out of compliance.
The general rule is that any policy violates the NLRA if it has a chilling effect on section
7 rights, even if it doesn’t explicitly prohibit section 7 activity. The test is whether employees
would reasonably construe the rule as prohibiting their section 7 rights. Of course rules or
policies written in response to union organizing activity, or to expressly restrict employee rights
is illegal per se.
With this background in mind, the Board’s position is that employees have a section 7
right to discuss wages, hours, and other terms and conditions of employment with fellow
employees and outsiders. Any attempt to restrict such discussion through a confidentiality
provision is unlawful. Confidentiality provisions must be limited to protecting other forms of
proprietary information unrelated to wages, hours and conditions of employment.
Perhaps the most alarming area is the scope of conduct employees may engage in when
criticizing supervisors and management. The Board has found that rules prohibiting
disrespectful, negative, inappropriate or rude conduct toward management are generally
unlawful. Even if such statements are false or defamatory they are protected, unless they are
made with “malice,” Under the malice standard, an employer must prove the statement was
knowingly false, or was made with reckless disregard for the truth. With the rise of social media,
many of the offensive statements are now made online and reach an audience far greater than the
water cooler talk of the past. Under the Board’s rules, however, such statements are equally
protected.
Employers have more leeway in prohibiting negative statements regarding co-workers,
clients and competitors. Also, truly insubordinate statements are also prohibited, but given
recent rulings it is very difficult to determine when such statements may in fact be found lawful.
In addition, rules limiting criticism of the employer’s products are generally permitted.
Further, rules limiting the right to communicate with third parties, including government
agencies, unions, or the press are generally illegal. Employees also have the right to use
company names and logos in protest information such as signs and leaflets, provided they fall
under the non-commercial fair use doctrine.
Another puzzling position is the right of employees to photograph, videotape and record
activities in the workplace. Employers often prohibit such activity, but now do so at the risk of
violating the NLRA. The Board takes the position that such recordings are permissible during
non-work time if done in furtherance of section 7 rights. To defend such policies, employers
must be able to show some strong privacy interest, and the example provided is patient privacy
in a medical setting.
While the information above summarizes some of the Board’s positions, it is critical that
a careful review of the specific language used in handbooks be undertaken by labor counsel prior
to publication in order to avoid unfair labor practice charges.
guidance to employers when drafting employee handbooks. Report. (GC 15-04). Over the past
few years many standard handbook provisions have been found to violate section 7 of the
National Labor Relations Act. That section allows both union and non-union employees to
engage in protected concerted activity for their mutual aid and protection. Employers have
struggled to keep current with the rapidly changing requirements, and have often found that their
good faith efforts to comply fall short of the Board’s expectations. The new report sheds greater
light on what has become an extremely nuanced approach to handbook drafting.
The report dissects numerous case decisions and tries to explain the subtle differences
between lawful and unlawful language. It covers the major areas which have been the focus of
recent litigation. These include confidentiality rules, employee conduct toward the company and
supervisors, employee conduct toward co-workers, employee interaction with third parties, use
of company logos and trademarks, restrictions on video and audio recordings at work,
restrictions on leaving work, and conflict of interest rules. Non-union employers in particular
will likely be astonished when reading the Board’s position on these issues, but failure to comply
can lead to serious repercussions.
While lengthy, employers are encouraged to read the full report, however, the following
summary provides a flavor for the types of issues companies need to be aware of when drafting
employee handbooks. Further, if your handbook has not been reviewed in the last year, it is
likely to be out of compliance.
The general rule is that any policy violates the NLRA if it has a chilling effect on section
7 rights, even if it doesn’t explicitly prohibit section 7 activity. The test is whether employees
would reasonably construe the rule as prohibiting their section 7 rights. Of course rules or
policies written in response to union organizing activity, or to expressly restrict employee rights
is illegal per se.
With this background in mind, the Board’s position is that employees have a section 7
right to discuss wages, hours, and other terms and conditions of employment with fellow
employees and outsiders. Any attempt to restrict such discussion through a confidentiality
provision is unlawful. Confidentiality provisions must be limited to protecting other forms of
proprietary information unrelated to wages, hours and conditions of employment.
Perhaps the most alarming area is the scope of conduct employees may engage in when
criticizing supervisors and management. The Board has found that rules prohibiting
disrespectful, negative, inappropriate or rude conduct toward management are generally
unlawful. Even if such statements are false or defamatory they are protected, unless they are
made with “malice,” Under the malice standard, an employer must prove the statement was
knowingly false, or was made with reckless disregard for the truth. With the rise of social media,
many of the offensive statements are now made online and reach an audience far greater than the
water cooler talk of the past. Under the Board’s rules, however, such statements are equally
protected.
Employers have more leeway in prohibiting negative statements regarding co-workers,
clients and competitors. Also, truly insubordinate statements are also prohibited, but given
recent rulings it is very difficult to determine when such statements may in fact be found lawful.
In addition, rules limiting criticism of the employer’s products are generally permitted.
Further, rules limiting the right to communicate with third parties, including government
agencies, unions, or the press are generally illegal. Employees also have the right to use
company names and logos in protest information such as signs and leaflets, provided they fall
under the non-commercial fair use doctrine.
Another puzzling position is the right of employees to photograph, videotape and record
activities in the workplace. Employers often prohibit such activity, but now do so at the risk of
violating the NLRA. The Board takes the position that such recordings are permissible during
non-work time if done in furtherance of section 7 rights. To defend such policies, employers
must be able to show some strong privacy interest, and the example provided is patient privacy
in a medical setting.
While the information above summarizes some of the Board’s positions, it is critical that
a careful review of the specific language used in handbooks be undertaken by labor counsel prior
to publication in order to avoid unfair labor practice charges.
