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NLRB Issues Guidance Regarding Lawful Employee Handbook Policies

Source: Alejandro Valle, Gonzalez Saggio & Harlan LLP.

Employers should be aware that the National Labor Relations Act (or "NLRA") applies even to employers who do not have a unionized workforce. Due to the broad reach of the NLRA, the recent guidance issued by the General Counsel of the National Labor Relations Board ("NLRB") regarding employee handbook policies is a must-read for human resources professionals and those charged with maintaining their company's employee policies.

The focus of the General Counsel's "Report" issued on March 18, 2015, arises out of Section 8(a)(1) of the NLRA, pursuant to which the mere maintenance of a rule that has a chilling effect on an employee's Section 7 activity is unlawful. ("Section 7 activity" is any activity by an employee or group of employees by which they seek to improve their pay and working conditions, regardless of whether or not they are already unionized.) The most important obstacle for employers to consider when drafting and revising their policies, according to the General Counsel, is the fact that policies will be considered unlawful by the NLRB when they would be reasonably construed by employees as restricting Section 7 activity, even if the policies are not designed or intended to have that effect.

Here are a few of the other helpful "Guidances":

  • The primary recommendation from the General Counsel is that handbook policies include clear and specific language, precise examples, and explanatory context so that employees will not reasonably construe otherwise lawful policies as limiting their lawful activity
  • Regarding confidentiality, for example, handbook policies are considered unlawfully overbroad if they leave employees with the impression they cannot discuss wages, hours, and other terms and conditions of employment with fellow employees and with non-employees
  • As for employee conduct rules governing action that might include criticism of management, the NLRB considers it unlawful for such rules to prohibit merely "rude" or "disrespectful" behavior toward managers or the "company" without sufficient clarification or context
  • The General Counsel looked unfavorably upon employee handbook policies that invoked anti-strike language within policies restricting employee movement to and from work. Such policies should not prohibit "walking off the job," which can be misconstrued to refer to protected strike actions and walkouts
  • The General Counsel indicates that lawful employee policies may prohibit employee activity that amounts to competition against the company or to self-dealing, but a policy may not, under the broad label of a "conflict-of-interest" rule, prohibit any conduct that is not "in the best interest" of the employer because protected activity can, of course, be against the interest of the company

For more NLRB General Counsel Guidance reports click here.