With the NLRB’s relentless attack on employee handbooks continuing, it is important for employers to regularly review their handbooks and verify that their handbook policies do not contain language that may discourage employees from exercising their rights to engage in protected concerted activity (“Section 7 rights”).
Recently, the NLRB’s general counsel released a guidance memorandum (entitled “Report of the General Counsel Concerning Employer Rules”) wherein the NLRB’s position with respect to employee handbooks was explained. In this memorandum, several examples of lawful and unlawful handbook policies were provided, along with an explanation as to why the provision was acceptable or unacceptable. While reviewing this memorandum is a good starting point for any handbook review, when reviewing your handbook, pay close attention to the following types of policies:
- Confidentiality Provisions. The NLRB often finds that these types of provisions are overbroad – especially those that broadly prohibit disclosing personnel or employee information. Under the NLRA, employees have the right to discuss with each other the terms and conditions of their employment, including wages, benefits, assignments, treatment by supervisors, etc. An overly broad policy often runs afoul of these rights.
- Positive Work Environment/Courtesy/Non-Disparagement Provisions. The NLRB has found that a policy that prohibits employees from engaging in “rude,” “negative,” or “disrespectful” conduct towards the company and/or prohibit “negative” or “inappropriate” discussions among employees violate the NLRA. Why? Employees have the right to criticize their employer’s treatment of employees and/or to discuss the terms and conditions of employment. An overly broad policy often runs afoul of these rights.
- No Disruption Provision. The NLRB has found that policies that prohibit employees from “causing a disruption” during working hours violates the NLRA because it could be interpreted to prohibit employees from engaging in Section 7 activities like engaging in a work stoppage or participating in a Union meeting.
- Use of Employer Email Systems. The NLRB has recently held that employees have the right to use their employer-provided e-mail account during non-working time for non-business purpose, including activities covered by Section 7.
- Social Media Provisions. The NLRB often find that these policies are overbroad and vague, characteristics that generally limit (in the eyes of the NLRB) an employee’s ability to engage in Section 7 activities. These policies must be drafted in a way that does not limit employee’s Section 7 rights, while addressing the company’s concern about an employee disparaging the company on a company-run platform.
As a general rule, when drafting employee policies, it is best to use specific and clear language. Policies with overbroad and/or vague language are generally found by the NLRB to infringe on employees’ Section 7 rights. It is important to consult with and HR Professional or a qualified employment attorney when preparing/reviewing an employee handbook.