Employee Handbooks 101: Recent Examples of Unlawful Employment Policies

  • Jan 30, 2020

Most employers know that a well-thought-out employee handbook is the starting point for effective employee management.  By defining the boundaries of acceptable workplace behavior and setting forth the company’s policies, handbooks work to both protect the employer’s brand and safeguard its employees’ rights.

When preparing a handbook, however, an employer must be careful not to enact employment policies that inadvertently violate Section 7 of the National Labor Relations Act (“NLRA”), which generally guarantees all employees the right to engage in “concerted action”—i.e., the right to unite with other employees and discuss their employers’ employment practices (such as wages and working conditions) without fear of employer retaliation.

This is especially true when it comes to policies addressing employee social media use, the use of personal electronics (e.g., cell phones) in the workplace, and the disclosure of confidential information.  Here are a just few examples of policies touching on those issues that the National Labor Relations Board (“NLRB”) has recently deemed unlawful under Section 7:

  1. Policy: “All information gathered by, retained or generated by the Company is confidential.  There shall be no disclosure of any confidential information to anyone outside the Company without the appropriate authorization . . . nothing in this policy is intended to infringe upon employee rights under Section Seven (7) of the [NLRA].”

Reason:  While the NLRB recognized that this provision did not “explicitly” prohibit employees from discussing confidential information pertaining to working conditions or wages, it nonetheless found the policy problematic because the provision could “easily be interpreted to include such information.”  In other words, the provision was deemed unlawful because it could be applied in a way that violated Section 7.

  1. Policy: “Employees should refrain from posting derogatory information about the Company on any [social media sites] and [should] proceed with any grievances or complaints through the normal channels.”

Reason:  According to the NLRB, this rule could potentially “cause employees to refrain from publicly criticizing employment problems on social media.”  Because such criticism is often “the seed that becomes protected concerted activity for improving working conditions,” any rule prohibiting it—absent some language limiting the rule’s applicability—is unlawful.

  1. Policy: “Employees may not post [the Company’s telephone number or extension] to any on-line forums . . . .”

Reason:  Concomitant with employees’ rights to unite and discuss their working conditions is their right to “solicit[] . . . the public to call the Employer and express support” for their cause.  Hence, according to the NLRB, an employee must be able to communicate her employer’s phone number to the public.

  1. Policy: “The use of personal cell phones or other mobile devices is prohibited during working hours for personal use, including phone calls, texting and downloading of web content.”

Reason:  The NLRB reasoned that this rule could be interpreted to prohibit employees from using their cell phones to engage in concerted activity while at work but on break.  As a result, the NLRB deemed the policy unlawful.

In determining the propriety of these policies, the NLRB weighed the nature and extent of the policy’s impact on employees’ Section 7 rights against the legitimate business justifications the policy was designed to further.  And in each case, the NLRB concluded that the employer’s business interests simply did not justify the infringement of its employees’ rights.

So, what does your employee handbook say?  Does it contain policies similar to the ones deemed unlawful, above?

If you haven’t given much thought to the terms of your company’s handbook lately, contact Attorney Ena Demir or Attorney Kyle Bumgarner, they would be happy to review and revise your handbook to ensure that it complies with the NLRB’s most recent guidance on Section 7 activities.

 

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