As you may have read in our November 2014 newsletter, the National Labor Relations Board (“NLRB”) is persistent in reviewing and striking down employee handbook policies that have potential to or are in violation of the National Labor Relations Act (the “Act”). Because of the broad provisions of the Act, employee handbooks are under extreme scrutiny for the purpose of protecting the rights of both unionized and nonunionized employees. Recently, the General Counsel of the NLRB, Richard Griffin, issued a 30-page memo that specifies employee handbook policies deemed lawful and unlawful for various reasons related to the Act.
As described in the memo, the NLRB’s legal standard for deciding the lawfulness of an employee handbook policy involves interpretation of Sections 7 and 8 of the Act. NLRB General Counsel, Richard Griffin, writes:
“The most obvious way a rule would violate Section 8(a)(1) is by explicitly restricting protected concerted activity; by banning union activity for example. Even if a rule does not explicitly prohibit Section 7 activity, however, it will still be found unlawful if 1) employees would reasonably construe the rule’s language to prohibit Section 7 activity; 2) the rule was promulgated in response to union or other Section 7 activity; or 3) the rule was actually applied to restrict the exercise of Section 7 rights.”
While the NLRB doesn’t offer a definitive list of all employee handbook policies that are compliant or unlawful with respect to the Act, it does emphasize some of the most frequent policies that arise in NLRB cases. Surprising to most, even the most well-intentioned policies can come under critical scrutiny for their overgeneralized terminology. Griffin offers, “Do not discuss ‘customer or employee information’ outside of work, including ‘phone numbers [and] addresses,’” as an example of one overbroad policy banning employee discussion of contact information regardless of how employees obtained that information.
Although the NLRB cannot fine an employer for violative provisions in the handbook, an employer is not free of monetary liability. For example, if an employee is terminated for violation of a company policy and the policy is later found to violate the employee’s Section 7 rights, the NLRB will order the employer to reinstate the employee with back pay and any loss of benefits.
To read further examples of lawful and unlawful policies, we have provided the memo here.
For more information on employee handbooks or other employment and labor law issues, please contact Philip S. Mortensen.