This article originally published in The Daily Record August 2, 2016.
Before you read this article, take out your employee handbook. (If you don’t have an employee handbook, skip the article for now and call me immediately.) Now think back to the last time any of the policies were updated. (If you’re having a hard time remembering, you can finish the article, then call me as soon as you are done reading.) Did the company hire an attorney specializing in employment law, or an HR consulting firm specializing in regulatory compliance, to create your current employee handbook? Was it written by your internal HR department using the old handbook as the basis? Or did you, the accounting/finance manager, risk manager, receptionist, or (insert the correct title HERE) use an online template, or handbook that a friend or relative got from another company?
I have lost count of the number of times I’ve heard, “our employee handbook is absolutely great! It was originally written for XYZ Company, and they would never risk compliance issues.” Or, “I found a template online for $99. The website said it is compliant with all federal employment regulations, and the labor laws for all 50 states.” That claim reminds me of an old Saturday Night Live skit. “Shimmer, it’s a floor wax and a dessert topping!” I just saw it on the Internet, so it must be true.
So, why does all of this matter? There has always been an abundance of reasons for companies to have a well-written and up-to-date employee handbook, both from the employee relations and regulatory compliance standpoints. For better or worse, most companies have something they refer to as their employee handbook. It’s the “well-written and up-to-date” piece that escapes many employers. As I explained to a client recently, if an employee consults with an attorney about a perceived workplace issue, one of the first things the attorney will ask to see is the employee handbook. At that point the danger of having poorly-written employment policies increases exponentially. The attorney isn’t going to just look at the policies related to the initial complaint, they are going to look for any policies that could have a negative or unlawful impact on their client’s employment. Conversely, if an employee files a complaint with a government agency, or initiates a lawsuit, the adjudicator is going to focus on the specific policy or policies related to the complaint. If that policy doesn’t contain the appropriate language, the employer’s defense becomes much more challenging. For example, it may not be sufficient to have the at-will employment statement only in the introduction to the employee handbook, when the employer’s disciplinary and attendance policies are the specific policies at issue.
Employers have another reason to be concerned about their employee handbooks. Over the last few years, employment policies have been increasingly scrutinized by a federal agency that many employers incorrectly believe has no jurisdiction over them, the National Labor Relations Board (“NLRB”). As the agency responsible for enforcing the National Labor Relations Act (“NLRA”)–legislation that covers most private sector employers, including manufacturing, retail, professional and nonprofessional services, hospitality, not-for-profit organizations, and health care, regardless of the number of employees and whether the employees are represented by a union–the NLRB has taken a particular interest in employee handbooks.
When reviewing employment policies, the Board looks to identify those that, in its opinion, interfere with, restrain, coerce, or prohibit employees from freely exercising their (Section 7) rights under the NLRA. Further, an employment policy may be found to have a “chilling effect” on the exercise of those rights if the NLRB determines that employees may reasonably believe the policy prohibits protected activities. The determination is not based on how the policy is actually applied, or even how it is interpreted by management or employees, it is based on how the Board thinks a reasonable employee would interpret the policy. For example, the NLRB has identified policies prohibiting offensive, disruptive, and/or harassing workplace behavior; policies prohibiting publishing false or derogatory statements about management; and policies against employees walking off the job as having a chilling effect. The NLRB has also made clear its view that employers are responsible for using policy language that prevents misunderstandings that could result in a chilling effect.
Before we look at some examples of the guidance and decisions coming from the NLRB regarding employment policies, I believe it is necessary to warn you that this information has caused many employers to spontaneously shout obscenities and other inappropriate words and phrases. If you are prone to doing so, I suggest reading the remainder of the article out of the earshot of anyone who may be offended.
I address these policies first because confidentiality is one of the most common concerns for employers. Confidentiality policies should be evaluated to determine whether they are narrowly written to protect legitimate business interests, or over-broad and may be interpreted as discouraging or forbidding employee discussions of terms and conditions of work, including wages, hours, and working conditions. According to the NLRB, policies that prohibit employees from disclosing or sharing employee lists, contact information, personnel files, employee handbooks and policies, and pay and benefits information are unlawful. The board takes a similar position on policies prohibiting discussions of “customer or employee information,” including employee “phone numbers and addresses;” policies requiring confidentiality of “private or internal” conversations; and policies prohibiting discussions about “work matters,” or any employer information that is “not public.”
Play Nice at Work
Like it or not, policies that prohibit “negative” or “inappropriate” employee discussions have been found to be unlawful by the NLRB. In addition, a policy stating, “don’t pick fights” online was determined to be unlawful because employees could believe it prohibits “protected discussions with their coworkers.” However, even the NLRB has got to draw the line at harassing behavior, right? Wrong. In fact, the NLRB found a policy prohibiting “insulting, embarrassing, hurtful, or abusive comments about other employees” was unlawful because “debate about unionization…is often contentious and controversial,” and the policy may be understood as “limiting [employees’] ability to honestly discuss such subjects.” The Board came to the same conclusion when reviewing a policy that required employees “show proper consideration for others’ privacy and for topics that may be considered objectionable or inflammatory.” The NLRB determined that it was unlawful because the “discussion of unionization … can be an inflammatory topic.”
Employers, Mind Your Own Business
In a recent case, the NLRB’s General Counsel (“GC”) took issue with the wording of a policy prohibiting employees from conducting personal business at work. The GC determined that, because the policy “bans employees from all of [the employer’s] property except when conducting [the employer’s] business,” it “unlawfully restricts off-duty employees from engaging in protected activity; and it prohibits protected activity during nonworking time.”
For my last example, I’m pulling from another recent case involving the Cy-Fair Volunteer Fire Department (“Cy-Fair”). In this case the NLRB determined that various policies, including the Cy-Fair social networking guidelines violated the NLRA because the language used may lead a reasonable employee to believe that they were prohibited from organizing or engaging in concerted activity.
The Cy-Fair social networking guidelines prohibited the use of its logos, names, pictures, or accounts of activities without prior approval. (Sound like any of the policies in your employee handbook?) Based on its review, the Board determined that a reasonable employee may believe that they, or a union, were not permitted to seek support from other employees, or publicize a dispute with Cy-Fair by using its name or logo on their clothing or literature.
Employers I talk to are confused and angry about what many believe is a one-sided interpretation of the law, seemingly based on out-of-context, “non-real-world” interpretations of employee handbook policies. As a general rule, employers draft and enforce employment policies to ensure a fair, productive, and safe workplace; promote a respectful work environment; provide employees with useful information; and protect the company. Given the Board’s current stance on employment policies, it’s clear that employers have reason to be concerned that the policies they rely on may be under scrutiny.
Now that you’ve gotten all of those expletives out of your system, it’s probably time to have your employee handbook reviewed and revised. It could save you a lot of headaches later.
Please feel free to contact me at firstname.lastname@example.org, or 855-672-4142 with questions or for more information.
Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.
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