Do your employee handbooks have unlawful provisions?

NLRB guidance to the rescue!

Posted June 15, 2018

In a June 6 memo to its regional directors, the National Labor Relations Board (NLRB) provided guidance on how they view certain employee handbook provisions. The memo breaks down employment rules into three categories.

Lawful

Note: simply because a rule falls in Category 1 does not mean an employer may lawfully use the rule to prohibit protected concerted activity or to discipline employees engaged in protected concerted activity.

  • Civility rules
  • No photography/recording rules
  • Rules against insubordination, non-cooperation, or on-the-job conduct that adversely affects operations
  • Disruptive behavior rules
  • Rules protecting confidential, proprietary, and customer information or documents
  • Rules against defamation or misrepresentation
  • Rules against using employer logos or intellectual property
  • Rules requiring authorization to speak for company
  • Rules against disloyalty, nepotism, or self-enrichment

Subject to scrutiny

Rules in this category are not obviously lawful or unlawful, and must be evaluated on a case-by-case basis to determine whether the rule would interfere with rights guaranteed by the NLRA, and if so, whether any adverse impact on those rights is outweighed by legitimate justifications. Examples include the following:

  • Broad conflict-of-interest rules that do not specifically target fraud and self-enrichment and do not restrict membership in, or voting for, a union.
  • Confidentiality rules broadly encompassing “employer business” or “employee information” (as opposed to confidentiality rules regarding customer or proprietary information, specifically directed at employee wages, terms of employment, or working conditions).
  • Rules regarding disparagement or criticism of the employer (as opposed to civility rules regarding disparagement of employees.
  • Rules banning off-duty conduct that might harm the employer (as opposed to rules banning insubordinate or disruptive conduct at work, or rules specifically banning participation in outside organizations.

Unlawful

  • Confidentiality rules specifically regarding wages, benefits, or working conditions.
  • Rules against joining outside organizations or voting on matters concerning employer.

The memo is a product of the NLRB’s decision in The Boeing Company, where the agency tried to strike a balance between a workplace rule’s negative impact on employees’ ability to exercise their rights under the National Labor Relations Act (NLRA) to unionize, to join together to advance their interests as employees, and to refrain from such activity (Section 7), and the workplace rule’s connection to employers’ right to maintain discipline and productivity. The decision also criticized prohibiting any workplace rule that could be interpreted as covering Section 7 activity, as opposed to only prohibiting rules that would be so interpreted.

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc.


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