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Ugly Truth #2: Many Commonly Utilized Handbook Policies Expose Employers to Liability Courtesy of NLRB

The National Labor Relations Board (“NLRB”) is the federal agency responsible for enforcing labor law in relation to union election, collective bargaining agreements between unions and employers, and unfair labor practices.  Unbeknownst to many employers, the National Labor Relation’s Act’s (“NLRA”) prohibition against unfair labor practices also extends to non-union employers. 

In recent years, the NLRB has taken a highly aggressive position against many commonly utilized employee handbook policies.  The NLRB alleges that overbroad employment policies could have a chilling effect on employees’ concerted activities protected by Section 7 of the NLRA. Generally speaking, there is protected concerted activity when two or more employees act together to improve their terms and conditions of employment.  Employees have a right to advocate in this manner even where there is no union involved.  Under the NLRB’s recent interpretive guidelines, an employer’s policy will violate the NLRA if it could simply be “construed” as restricting Section 7 rights. 

On this basis, the NLRB has been asserting unfair labor practice complaints against employers across the country for handbook policies that are commonly utilized.  Examples of handbook policies that the NLRB finds could be construed as restricting Section 7 rights include the following:

  • Policies against “personal business” on company property and “while at work.” 
    [NLRB Position:  The prohibition against conducting “personal business” on company property and “while at work” can reasonably be read to restrict the communications of employees with each other about union or other Section 7 protected rights in non-work areas and on non-work time.]
  • No "[d]efamatory, libelous, slanderous or discriminatory comments about [the Company], its customers and/or competitors, its employees or management.
    [NLRB Position:  Employees have the Section 7 right to criticize or protest their employer's labor policies or treatment of employees.  Thus, rules that can reasonably be read to prohibit protected concerted criticism of the employer will be found unlawfully overbroad.]
  • Policies against employees discussing or disclosing wages.
    [NLRB Position:  Employees have a Section 7 right to discuss wages, hours, and other terms and conditions of employment with fellow employees, as well as with nonemployees, such as union representatives.]
  • "You must not disclose proprietary or confidential information about [the Employer, or] other associates (if the proprietary or confidential information relating to [the Employer's] associates was obtained in violation of law or lawful Company policy)."
    [NLRB Position:  “Although this rule's restriction on disclosing information about "other associates" is not a blanket ban, it is nonetheless unlawfully overbroad because a reasonable employee would not understand how the employer determines what constitutes a "lawful Company policy."]

On the same basis, the NLRB also has been filing unfair labor practice complaints against employers because of their social media policies that impose discipline on employees for disparaging comments made about their employers or supervisors on their personal Facebook pages or other social media.

There has been an expectation among employers that with a new administration, and with the NLRB soon to have its full complement of Republican members, that the Board might relax its position. However, as recently as late April 2017, an NLRB judge ruled against Verizon Wireless, ordering it to strike ten of its employee handbook policies on the basis that they violated the NLRA because they could be construed in such a way to “chill” an employee’s right to engage in protected concerted activity.

In another recent case, the United States Court of Appeals for the Second Circuit in New York affirmed the NLRB’s controversial ruling against Whole Foods’ policy against employees from making workplace recordings.  The Second Circuit agreed with the NLRB’s position that the rule could be construed as blocking workers from recording activity protected by the National Labor Relations Act.

The NLRB has published guidelines to assist employers in drafting handbook provisions that will withstand scrutiny, but the difference between what the NLRB considers a lawful handbook policy and what it considers an unfair labor practice is fairly subtle.  Some points to consider:

  • Have your policy acknowledge the law.  One way to ensure that your handbook/social media policy is not considered invalid on its face is to include protective language which states the policy will be applied and enforced consistent with the NLRA and any other applicable local, state or federal laws.
  • Avoid overly broad language.  While employers may want to have a policy that would address every conceivable situation that might arise, such a strategy runs the risk of being considered invalid under the NLRA.  
  • Have handbook policies reviewed for legal compliance.
  • Review Internet/social media policies yearly.  Social media and its technology is constantly changing, and the statutory and case law governing its use in the workplace is also evolving.  It is wise to make sure employment policies keep pace.

Read Ugly Truth #1: The Best Employee Handbook in the World Will Not Prevent a Lawsuit (but a Bad One Could Help the Plaintiff Win)

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About Mark Fijman

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Mark Fijman specializes in labor and employment issues relating to the restaurant and hospitality industry, including Fair Labor Standards Act ("FLSA") compliance. He is an attorney in the Labor and Employment Section of law firm Phelps Dunbar, LLP’s Jackson, Mississippi office. He can be contacted at (601) 360-9716 or FijmanM@Phelps.com.

Fijman represents and advises employers regarding federal and state employment laws dealing with race, age, disability, gender, national origin and religious discrimination and in administrative proceedings before the Equal Employment Opportunity Commission. His practice includes representing employers seeking to enforce non-competition/non-solicitation agreements and pursuing injunctive relief for improper use of proprietary information.He routinely counsels on issues ranging from overtime questions to discipline and termination decisions. Direct phone: (601) 360-9716.  Phelps Dunbar, LLP has offices in New Orleans, LA, Baton Rouge, LA, Houston, TX, Tampa, FL, Mobile, AL, Raleigh, NC, Jackson, MS, Gulfport, MS, Tupelo, MS and London, England.

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