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“Formal” guidance on employee handbook policy changes published

March 30, 2015

By Michael J. Burns, courtesy of SBAM Approved Partner ASE

On March 18th the General Counsel of the National Labor Relations Board (NLRB) released an official memo reporting on the status of NLRB decisions for and against the many handbook policies they have reviewed and found illegal in the last two years-plus.

ASE has reported on these new rulings, which have gradually but surely changed the landscape of employment policy coming out of the NLRB. The rulings, though released frequently, attacked many different but common employee handbook policies in non-union employers.

The NLRB’s underlying rationale for the rulings is that these policies impinge on the employee’s right to engage in “protected concerted activities” under the National Labor Relations Act. In general, this is the right to discuss wages and benefits along with “terms and conditions” of employment, with each other and with interested third parties.

This water torture of gradual but incessant changes to previously grounded and legal rules has forced employers to go back again and again to review particular employment handbook policies.  

On one hand, the report amounts to a valuable package of information for employers because it encapsulates all the NLRB decisions challenging common employee policies, and it provides an explanation of why a given policy statement was found to be illegal. Just as importantly, it provides examples of legal policy statements. On the other hand, Frank Mamat, Sr. Attorney with Foster, Swift and Collins and former NLRB labor attorney stated that this Memo does not have the force of law or regulation and is not even binding on NLRB Administrative Law Judges or the Regional Directors. In addition to the NLRB Board rulings the memo seeks to encompass, it does however act as persuasive authority  to local NLRB offices on what rules and policy language they will and will not challenge.

The report looks at a myriad of handbook policies the NLRB has, thus far, found illegal. They include

Confidentiality

Employee Conduct toward the Company and Supervisors

Employee Conduct toward Fellow Employees

Employee Interaction with Third Parties,

Use of Company Logos, Copyrights and Trademarks

Restrictions on Photography, Recording and Personal Electronic Devices

Restricting Employees from Leaving Work and

Conflict of Interest Rules

What is the NLRB trying to accomplish by forcing employers to change previously legal, proper and long- standing policy statements? Simply, today’s NLRB is on a hunt to purge any “rule” or policy that it (and most likely the counsels of many a labor union) even just potentially hinders, in its view, a worker’s right to engage in protected concerted activity (i.e., union organizing). Keep in mind that it is non-union employees, as long as they are covered by the National Labor Relations Act, that the NLRB is targeting.

Therefore, all employers covered by the National Labor Relations Act cannot have any rule that prohibits an employee from discussing terms and conditions of employment as well as wages with pretty much anyone they choose.

As a quick refresher, employees covered by the NLRA are all employees except public-sector employees, agricultural and domestic workers, independent contractors, workers employed by a parent or spouse, employees of air and rail carriers covered by the Railway Labor Act (which has a separate set of rules), and supervisors.

The NLRB General Counsel states at the start of this report, “I believe that most employers do not draft their employee handbooks with the object of prohibiting or restricting conduct protected by the National Labor Relations Act, the law does not allow even well intentioned rules that would inhibit employees from engaging in activities protected  by the act.”

In upcoming articles in everythingpeople.™ This Week! we will look at the above policies and detail what the NLRB considers illegal rules and what they have found are legal ways of stating the same rules/policies.

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