Is your Employee Handbook too positive?

Everyone knows how important a positive, supportive company culture is to recruiting, retention, and overall productivity, right?

Well, employers, you’ve just entered a Don’t Ask, Don’t Tell World when it comes to creating company policy that involves imposing positive workplace behaviors.

In a recent NLRB decision (14-CA-106906), employers cannot explicitly require workers to “maintain a positive work environment” or otherwise expect employees to adhere to similar “ambiguous and vague” company policies.

At issue was an employee handbook section that read:

“[The employer] expects all employees to behave in a professional manner that promotes efficiency, productivity, and cooperation. Employees are expected to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers, and management.”

Specifically, the NLRB took issue with the phrases positive work environment and communicating in a manner that is conducive to effective working relationships.  These are, in the NLRB’s determination, too broad.

According to the NLRB’s decision, many activities allowed by Section 7 of the National Labor Relations Act (NLRA) would arise from potentially “negative” workplace situations. That means when workers discuss negative circumstances among themselves or with management, they could be perceived as being Negative Nellies, running afoul of a “positive work environment” clause – and all that adds up to potentially curtailing workers’ ability to seek positive workplace changes under the protected concerted activities afforded workers in the NLRA.

In other interesting twists in the decision:

• Handbook NOT proprietary. The NLRB ordered the employer to remove a provision in the handbook that claimed the contents of the handbook were proprietary and unable to be shared with a third party.
• Confidentiality of internal investigations. The employer cannot restrict employees from sharing the names of employees involved in internal investigations as complainants, subjects, or witnesses.
• Payroll/Wage and hour complaints. Employees cannot be limited to making wage complaints to parties other than a manager, HR business partner, or other prescribed internal resource.
• Media interaction. Employers cannot force workers to direct media inquiries to appropriate corporate contacts “without comment”.
• Communications resources. Employers cannot restrict workers’ ability to use company information or communications resources in ways that could be perceived as “disruptive, offensive, or harmful to morale”. Nor can they prohibit workers from using those resources to “advocate, disparage, or solicit for political causes or non-company-related outside organizations”.
• Discussing wage and salary. An employer cannot require workers to sign agreements restricting discussion of wage and salary information.
• Arguing or detrimental comments. Although employers generally want their workers to be nice to one another, the NLRB ordered the employer to remove any requirement prohibiting workers from arguing with one another, treating others with disrespect, or failing to demonstrate teamwork.
• Workplace video/audio policies. Employers cannot prohibit workers from recording video and audio in the workplace or to require them to seek permission before doing so.
• No ratting. Employers cannot establish policies requiring employees to turn one another in for illegal actions.

This decision covers a lot of ground. Time to review the NLRB decision to see if it affects your handbook.

At this rate, all that will be left in the handbook is the company logo on the front and a list of company holidays.