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NLRB Gives Employers More Freedom with Employee Handbooks

    By Allen Smith, J.D.

    mployers can expect the National Labor Relations Board (NLRB) to subject their employee handbooks to far less scrutiny following the issuance of a general counsel memo approving common handbook provisions. These wide-ranging provisions cover such subjects as civility standards, insubordination rules and prohibitions on taking pictures in the workplace.

    NLRB General Counsel Peter Robb's June 6 memo outlined three categories of rules: rules that are generally lawful, provisions warranting individualized scrutiny and rules that are unlawful. Most of the rules mentioned in the memo were deemed to usually be lawful.

    The NLRB won't seek to review employers' handbooks every time there is an alleged National Labor Relations Act (NLRA) violation, as has been common practice in the recent past, predicted Phillip Wilson, president and general counsel of the Labor Relations Institute in Broken Arrow, Okla.

    "Many employers felt a real tension between policies designed to encourage a positive working environment and fear that these policies could be wrongly interpreted as denying employees the right to collectively bargain under Section 7 of the NLRA," said Nancy Hammer, vice president, regulatory affairs and judicial counsel with the Society for Human Resource Management. "The NLRB's new guidance on handbooks provides helpful parameters for employers as they review their handbooks and policies in light of the board's decision in Boeing."

    In Boeing, the NLRB established a new standard for when a work rule violates the NLRA. The standard focused on the balance between the rule's negative impact on employees' ability to exercise their NLRA rights and the rule's connection to an employer's right to maintain discipline and productivity in the workplace.

    Lawful Handbook Provisions

    Employee-handbook civility rules generally will be held to be valid, the memo provides.

    Lawful civility rules might state, for example:

    • Behavior that is rude, condescending or otherwise socially unacceptable is prohibited.
    • Disparaging the company's employees is prohibited.
    • Employees may not post any statements, photographs, video or audio that reasonably could be viewed as disparaging to workers.

    Rules against defamation or misrepresentation are generally allowed. Examples of such rules are:

    • Misrepresenting the company's products, services or employees is prohibited.
    • E-mail messages that are defamatory are prohibited.

    Employees will generally understand that these types of rules do not apply to subjectively honest, protected, concerted speech, the memo states.

    Rules banning disloyalty, nepotism or self-enrichment all generally are OK.

    A disruptive-behavior rule is common in employee handbooks, the memo notes, and typically are lawful. An example of such a rule is:

    • Disorderly conduct on the employer's premises and/or during working hours for any reason is strictly prohibited.

    Even if employees would interpret such a rule as applying to strikes, workers would generally not refrain from such activity merely because a rule bans disruptive conduct, the memo notes.

    The vast majority of activity covered by insubordination rules is unprotected by the National Labor Relations Act (NLRA), the memo provides. "An employer has a legitimate and substantial interest in preventing insubordination or noncooperation at work," it states. "Furthermore, during working time an employer has every right to expect employees to perform their work and follow directives."

    Rules protecting confidential proprietary and customer information similarly are generally lawful, as are rules against using employer logos or intellectual property. Employees are unlikely to be deterred from fair use of a logo on a picket sign by a rule in an employee manual, the memo states.

    No-photography rules and no-recording rules also generally are allowed.

    Employers may set rules requiring authorization to speak for the company or requiring that only certain persons speak for the company.

    Michael Lotito, an attorney with Littler in San Francisco and co-chair of Littler's Workplace Policy Institute, cautioned that employers still might be held liable if they discipline for violating lawful rules only those engaging in union activity, while letting other employees get away with breaking those rules.

    Provisions Warranting Individualized Scrutiny

    Rules that may be subject to board scrutiny include:

    • Broad conflict-of-interest rules.
    • Confidentiality rules broadly encompassing "employer business" or "employee information."
    • Rules regarding disparagement or criticism of the employer.
    • Policies regulating use of the employer's name.
    • Rules restricting speaking to the media or third parties, as opposed to speaking to the media on the employer's behalf.
    • Policies banning off-duty conduct that might harm the employer.
    • Rules against making false or inaccurate statements, as opposed to defamatory statements.

    Unlawful Rules

    Unlawful rules include confidentiality rules regarding wages, benefits or working conditions.

    The following confidentiality rules are unlawful:

    • Employees are prohibited from disclosing salaries and contents of employment contracts.
    • Workers shall not disclose any information pertaining to the wages, commissions, performance or identity of employees of the employer.
    • Employees are prohibited from disclosing to any media source information regarding employment at the employer, the workings and conditions of the employer, or any staff member.
    • "This type of rule has a serious adverse impact on the central NLRA right of employees to contact one another and discuss working conditions and employment disputes, which is not outweighed by any employer interest, and is thus always unlawful," the memo states.

    Mark Kisicki, an attorney with Ogletree Deakins in Phoenix, said that many employers are not aware that employees are protected by the NLRA when they discuss their wages with other employees.

    Other unlawful rules prohibit employees from joining outside organizations or voting on matters concerning employers.

    Change Handbook Provisions?

    Lotito suggested that employers might consider dusting off old handbook provisions that they got rid of during the Obama administration, as they might be deemed lawful again.

    Wilson said the pendulum at the NLRB has been swinging back and forth from administration to administration, so employers may choose to keep the policies they have for the sake of stability, in case the pendulum ever swings back.

    However, Kisicki said that employers should be confident that the memo will represent NLRB policy for the next several years. If employers have modified their handbooks in recent years to an extent that important interests are not protected, he said that they should readdress them.