NLRB Targets Employee Handbooks. Does Yours Stand Up?

The National Labor Relations Board (NLRB) has employee rules in its sights. In the last year or more, the board has issued several decisions regarding whether rules governing social media, at-will employment, employee communications in and out of the office, confidentiality, workers’ access to company property and other conduct constitute unfair labor practices. In some instances, the board found policies unlawful under the National Labor Relations Act (NLRA). The board ruled other policies were lawful, sometimes contrary to previous rulings on comparative language.

Section 7 of the NLRA gives union and non-union employees 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. . . .” Under Section 8, it is an “unfair labor practice” for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.”

Increasingly, employees cite Section 7 to challenge company policies, arguing the policies hinder their ability to engage in concerted activities to improve their wages and working conditions. Consequently, NLRB is targeting overly broad language—often historically accepted language—that employees might reasonably construe as impinging on their Section 7 rights.

Companies looking to avoid government attention should carefully consider their policy language. While a handbook violation under the NLRA does not result in a fine, the NLRB has overturned discipline and termination decisions because of invalid policy language. Additionally, failed union activities may get new life from an NLRB decision.

Recent Cases—Example #1

In April, a three-member panel of the board reversed portions of a 2011 administrative law judge (ALJ) decision.¹ The NLRB panel:

• Upheld, the ALJ holding that a rule barring employees from meeting with union representatives on company property at any time was unlawful. One of the union representatives was an employee who had the right to organize on the premises, the panel said.
• Agreed with the ALJ’s decision that language prohibiting “discourteous or inappropriate attitude or behavior” was overly broad and could be construed by the employee to preclude discussion of their employment, in violation of Section 7 of the NLRA.
• Concluded a prohibition on uncivil, abusive or profane language would be construed by employees to require that they act with “civility and decorum.” The language was not so ambiguous or overly broad, the panel said.
• Overturned the ALJ’s finding that a rule prohibiting poor work habits “including loafing, wasting time, loitering, or excessive visiting,” was a violation. Workers would reasonably believe that the loitering and poor work habits provision referred to their job performance, not to prohibiting protected activities during non-work time in non-work areas, the panel concluded. Thus, the policy did not constitute a violation, the panel said. The NLRB previously has struck down no loitering policies.
• Overturned the ALJ’s ruling that language prohibiting workers from using company property for non-work-related activities at any time, was a violation. Examining the context of the “using Company property” rule, the panel found that because it appeared in the portion of the handbook dealing with theft/stealing of company property, which is unprotected activity, the language did not ban protected activity on company property and thus was not an NLRA violation.

FOA Policy Provisions

Of additional note, the NLRB panel addressed the employer’s contention that its freedom of association (FOA) policy applied to all handbook provisions, which precluded a finding that its handbook infringed on Section 7 rights. While the panel agreed that an FOA policy may, in certain circumstances, clarify the scope of an otherwise ambiguous and unlawful rule, the provision in this case “does little to ensure that employees would not read otherwise overbroad rules as restricting their Section 7 rights.” The panel noted that the FOA policy is too narrow because it focuses solely on union organizational rights.”

The panel said an effective “safe harbor” or “savings clause,” should:

• Adequately address the broad panoply of rights protected by Section 7, not just the right to organize.
• Be placed prominently and proximate to the rules it purports to inform.
• Expressly reference those rules, and the rules should expressly reference the FOA policy.

Recent Cases—Example #2

The same week, the NLRB decided a hospital case², in which it found unlawful three rules in the employer’s Values and Standards of Behavior Policy relating to teamwork and positive attitudes. The panel said the rules prohibit employees “from making statements to third parties protesting their terms and conditions of employment — activity that may not be ‘positive’ toward the [employer] but is clearly protected by Section 7.”

The rules at issue were:

• We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other.
• We will represent Hills and Dales in the community in a positive and professional manner in every opportunity.
• We will not engage in or listen to negativity or gossip. We will recognize that listening without acting to stop it is the same as participating.

The NLRB pointed out that the language was not lawful simply because employees helped draft it. “Employees might well endorse an unlawful rule, knowingly or not, but their consent or acquiescence cannot validate the rule.”

The NLRB held that the hospital had to rescind these policies. No employee claimed to have been wrongly disciplined due to the policies.

On the Horizon

The NLRB pursuit of unlawful handbook language shows no signs of abating. The board solicited briefs, due June 16, in Purple Communications, Inc., to discuss whether a policy prohibiting personal use of company electronic systems violates Section 8 and whether employees have a statutory right to use the company email system for Section 7 purposes. The board also asks that if it overturns its holding in Register Guard that allows employers to ban such communications, what standards of employee access and restrictions may an employer place on them?

Tips for Avoiding Scrutiny

Guided by binding NLRB decisions, companies should regularly review their handbook language. Companies should:

• Use specific language approved by the NLRB
• Avoid broad, undefined terms
• Avoid general prohibitions
• Provide specific examples of the kind of behavior the policy aims to prevent
• State why the policy is in place, to make it clear it is not intended to target Section 7 rights
• Avoid policies that may appear to workers to prohibit protected activities, such as talking about pay and working conditions
• Use “savings clauses,” throughout a document, when a policy might raise a red flag

In the end, employers must carefully review their work rules language. Seeking counsel from an attorney who keeps abreast of the rapidly changing NLRB landscape is the best avenue for obtaining policies that achieve company goals and withstand scrutiny.

¹ First Transit, Inc. and Amalgamated Transit Union Local #1433

² Hills and Dales General Hospital and Danielle Corlis