The Law @ Work

NLRB Continues Scrutiny of Employee Handbooks

by Timothy F. Murphy

The NLRB has made a concerted effort over the past few years to remind non-unionized employers that federal labor laws also apply to them. Employer policies have come under the NLRB’s microscope. First, it was social media policies. Soon after came NLRB rulings that “at-will” employment disclaimers and certain mandatory arbitration agreements violated the National Labor Relations Act (NLRA).

Two very recent decisions demonstrate the NLRB’s ongoing efforts to strike down any employer policy that employees might possibly interpret to restrict their rights to speak out on pay, benefits, and working condition and/or to support or oppose unionization, which are guaranteed by Section 7 of the NLRA.

Earlier this month, the NLRB found a policy prohibiting “[d]iscourteous or inappropriate attitude or behavior to passengers, other employees, or members of the public…” unlawful because employees could understand it to restrict their Section 7 rights.

A second NLRB decision this month found the following conduct standards in a Handbook similarly illegal:

• Refrain from “negative comments” about coworkers and managers;
• Represent the company in the community with a “positive and professional manner”; and
• Don’t “engage in or listen to negativity or gossip.”

The Board felt that the typical employee would think these rules mean they can’t complain about or protest their pay, benefits, or working conditions.

These decisions make it even more important to review your Handbook to see how it would hold up to NLRB scrutiny.

Share this