NLRB Changes Approach to Handbooks
The National Labor Relations Board (NLRB) appears to be pulling back from its recent policy of providing advice on what should and should not be in an employer’s handbook.
The NLRB has in recent years maintained that some language may “chill” or discourage employees’ desire to attempt to form a union. But a new majority is now in place at the NLRB and the agency’s general counsel this summer highlighted a shift away from involvement in the details of handbooks.
Employers should remember that the NLRB is a relatively minor player in the handbook litigation world. While it may loom large in the context of evaluating a handbook in light of a union drive, it’s far more common for employers face legal challenges based on state-law claims such as discrimination, unemployment or wage, and hour laws. Only 6.4% of private sector workers are in unions.
The general counsel’s guidance indicates that the NLRB will no longer presume handbook policies violate the National Labor Relations Act because the language “could be interpreted” to interfere with employees’ Section 7 activities (the right to engage in protected, concerted activity, including the right to form, join or assist unions).
Instead, the NLRB will focus on content in handbooks that “would” be interpreted as interfering with, suppressing or chilling Section 7 activity. The new “would” standard is likely to reduce the number of alleged handbook violations.
The general counsel says that ambiguities in workplace rules should no longer automatically be deemed as bad intent by the employer, and that “generalized provisions should no longer be interpreted as banning all [protected] activity that could conceivably be included.”
The NLRB guidance makes it clear that handbook language should be viewed in light of the three categories outlined below:
Rules That Are Generally Lawful to Maintain (i.e., presumed lawful)
- civility rules;
- rules banning photography and workplace recordings;
- rules against insubordination, non-cooperation, or on-the-job misconduct;
- rules prohibiting disruptive behavior;
- rules protecting confidential, proprietary and customer information or documents;
- rules against defamation or misrepresentation;
- rules against using employer logos or intellectual property;
- rules requiring authorization before speaking for the employer; and
- rules banning disloyalty, nepotism, or self-enrichment.
Rules Deserving Individualized (i.e., closer) Scrutiny
These rules may or may not be legal, depending on the context:
- broad conflict of interest rules that seem to reach beyond prohibiting fraud and self-enrichment;
- broad confidentiality rules encompassing all “employer business” or “employee information;”
- rules prohibiting any disparagement of the employer, as opposed to civility rules about behavior toward co-workers or customers;
- rules prohibiting the use of the employer’s name, as opposed to the use of a logo or trademark;
- rules prohibiting media contact generally, as opposed to speaking on the employer’s behalf;
- rules banning off-duty conduct that might harm the employer, as opposed to rules prohibiting on-duty disruptive or insubordinate conduct;
- rules against any type of false or inaccurate statements, as opposed to defamatory statements.
Some rules are still simply unlawful to maintain, including:
- rules imposing confidentiality or demanding silence about wages, benefits, or working conditions;
- rules against joining outside organizations or prohibiting voting on matters concerning the employer.
- For many employers, this may mean a time to review their policies and practices to ensure that they are consistent with the new guidance. Policies that fall under category two may involve some analysis and thought about whether your policy presents a problem.