NLRB Offers Guidance On Employee Handbooks

Employers need to assess their employee handbooks for policies and phrasing that may run afoul of the NLRB.

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General Counsel for the National Labor Relations Board (NLRB) recently published a memorandum on the issue of employer handbook policies and their compliance with the National Labor Relations Act (NLRA). The memorandum provides specific examples of lawful and unlawful employee handbook policies pertaining to:

  • Confidentiality
  • Employee conduct toward employers
  • Employee conduct toward fellow employees
  • Employee interaction with third parties
  • Use of company logos, copyrights and trademarks
  • Employee’s use of photography and recording
  • Restricting employees from leaving work
  • Conflicts of interest

The NLRB has been aggressively reviewing employee handbook policies over the last several years and determining if said policies violate the NLRA. Section 7 protects employees’ rights to form or join a union and engage in “protected, concerted activity” regarding wages, hours and other working conditions for their “mutual aid or protection.” The NLRB considers a policy to be unlawful if it specifically prohibits the NLRA or if “employees would reasonably construe” the policy as prohibiting such activity.

These decisions have forced many employers (both union and non-union), to revise any employee policies that could be deemed as violating Section 7. However, the NLRB’s decisions have been confusing and have caused frustration for employers when trying to decipher whether a policy “chills” an employee’s rights.

Suggestions for Employers

The release of the NLRB’s memorandum demonstrates that employee handbooks and other policies will continue to be aggressively scrutinized. A good rule of thumb for employers is to speak with an employment attorney to audit and revise your employee handbooks and other workplace policies.

Protected Concerted Activity

Protected Concerted Activity is defined as “a legal term used in labor policy to define employee protection against employer retaliation. It is a legal principle under the subject of the freedom of association.” An example of protected concerted activity is when two or more employees talk to their employer about wages, benefits, working conditions or other conditions of their employment. An individual employee may also engage in protected concerted activity if (s)he is speaking up for a group of employees.

National Labor Relations Act (NLRA)

The NLRA, enacted in 1935, is a federal law that “protects the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, businesses and the U.S. economy.”

Section 7 states “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title].”

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