Time to update your employee handbook
This is a guest post by Joseph H. Harris, Partner, White Harris PLLC.
Recent activity by the National Labor Relations Board (NLRB) means that it is time to review, and possibly revise, some key employment policies. The NLRB enforces the National Labor Relations Act (NLRA), which, contrary to popular belief, applies to most employers—including non-unionized businesses.
There are two points employers need to understand. First, the current NLRB takes an extremely broad view of NLRA protections, including in non-unionized workplaces. Second, employers do not need to actually terminate an employee (or take other adverse job action against them) in order to be subject to NLRB action. All that is necessary is that the employer maintains a policy that the NLRB views as violating the NLRA. The kinds of policies the NLRB has objected to may surprise you:
- Social media and online communications. What follows are examples of policies that have been found to violate the NLRA. Policies prohibiting employees from commenting on work-related matters without prior company approval; “damag[ing] the company, defam[ing] any individual, or damag[ing] any person’s reputation”; making “disparaging or defamatory comments” about the employer or “its employees, officers, directors, vendors, customers, partners, affiliates, or our, or their, products/services;” from being “disrespectful or us[ing] profanity or any other language which injures the image or reputation” of the company. Also found to violate the NLRA was a policy that required employees to be “courteous, police, and friendly” in their interactions with vendors, suppliers, and co-workers and a policy that required employees to report any known or suspected violations of the social media policy to the employer.
- Investigations and confidentiality.It is standard practice for employers conducting internal workplace investigations to advise participants not to discuss the investigation with other employees. This is a common sense measure intended to ensure the integrity of the investigation. However, the NLRB has held that employers who impose blanket bans on employees discussing internal investigations violate the NLRA because such policies restrain employees from engaging in protected concerted activity in order to improve the terms and conditions of employment.
The NLRB’s decision does not mean that employees may never be asked to keep workplace investigations confidential. Rather, the Board requires a case-by-case approach that takes into account many factors including whether witnesses need protection, whether evidence may be fabricated or destroyed without confidentiality and whether there is a risk of a cover-up. However, as far as the NLRB is concerned, a generalized concern with maintaining the integrity of the investigation is an insufficient basis, without more, to require blanket confidentiality.
- Insubordination. Another common employee handbook policy prohibits insubordination. However, defining insubordination as “the refusal to follow a reasonable work directive or undermining the Company, management or employees” has been found to violate the NLRA because it could be construed by employees as prohibiting them from challenging their working conditions.
- At-will disclaimer.Arguably the most common employer policy, the at-will disclaimer, notifies employees that their employment relationship with the company may be terminated at any time, with or without cause, and with or without notice, and that an employee can only alter the at-will relationship by entering into a contract of employment with the company that is signed by a senior executive. In one case, the NLRB challenged an at-will disclaimer, contained in a handbook acknowledgment (the signing of which was a condition of employment), that stated that “no oral or written statements or representation regarding your employment can alter your at-will status, except for a written agreement signed by you and either our Executive Vice President/Chief Operating officer or  President.” It seems this policy was challenged because it could be interpreted by employees to mean that they could not alter their at-will status through collective bargaining or other concerted activity.
In another case, the disclaimer stated that the “at-will relationship cannot be amended, modified or altered in any way.” This was found to violate the NLRA because, according to the administrative law judge, it “premise[d] employment on an employee’s agreement not to enter into any contract, to make any efforts, or to engage in conduct that could result in union representation and in a collective-bargaining agreement, which would amend, modify, or alter the at-will relationship.”
- Media communications. Some employers require that employees receive prior authorization from the company before communicating with the media. However, such policies have been found to violate the NLRA because of a concern that requiring the employer’s advance consent may chill employees’ rights to seek support from sources outside of the company to improve the terms and conditions of their employment.
- Confidential information. Employers commonly include in their handbooks policies prohibiting employees from revealing confidential or sensitive information. However, in a recent NLRB decision, the Board found that an employer violated the NRLA by maintaining rules prohibiting employees from: posting, distributing, removing or altering any material on company property without authorization; discussing private matters of other employees, such as sick calls, leaves of absence, FMLA call-outs, ADA accommodations, workers’ compensation injuries and personal health information; sharing, transmitting, storing sensitive employee data, such as payroll information, without company approval; sharing confidential information such as employees’ names, addresses, phone numbers and email addresses.
What should employers do?
First, prepare for more decisions that broadly interpret and apply the protections of the NLRA, including to non-unionized workplaces. Keep in mind that, although many of these decisions will likely be challenged, it will be quite some time before employers have clarity or finality on many of these issues.
Second, review workplace policies for those which could be viewed as overbroad and could conceivably be interpreted as impinging on employees’ right to engage in union organizing or to engage in concerted activity in order to improve the terms and conditions of their employment, such as their wages, benefits, hours and working conditions. (One red flag to look for would be policies that prohibit employees from speaking critically of the employer.) To reduce the chance that a policy may be found to violate the NLRA, be clear—using examples—about the kinds of activities the policy is intended to prohibit and carve out from those restrictions, also using examples, concerted employee activity. Alarming as some of these developments may be, employers should not overreact by dramatically changing or completely eliminating certain workplace policies, such as, for example, the at-will disclaimer. Doing so could backfire and actually increase legal exposure.
Third, consult employment counsel before disciplining an employee for complaining about the terms and conditions of employment, as such complaints may fall under the protections of the NLRA.
About the author: White Harris PLLC practices exclusively in the area of labor and employment law, representing management. The firm counsels businesses on how to comply with local, state, and federal employment laws and represents them in court, before government agencies, and in alternative forums such as arbitration and mediation. For more information, visit http://whiteharrislaw.com.
Mr. Harris is an alumnus of Oxford University and a graduate of Haverford College and the Benjamin N. Cardozo School of Law. He is admitted to practice in the state of New York and in the federal courts in the Southern and Eastern districts of New York. He is a member of the Labor and Employment Law Section of the New York State Bar Association and the Labor and Employment Law Committee of the New York City Bar Association.
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