Employee Handbook Policies You Can and Cannot Legally Include

For the last several years, the National Labor Relations Board has been regulating which policies your employee handbook can and cannot include, even in your non-unionized workplace. At one point in 2015, there were dozens of handbook policies that were considered to have a chilling effect on an employee’s freedom to organize through “concerted activity”. Those policies were ruled to violate the National Labor Relations Act and as an employment lawyer, when I encountered them in a client’s employment policy manual, I either removed them or added a disclaimer stating that the policies weren’t intended to apply to acts protected by the NLRA.

Three years have passed and several court opinions have frowned on the NLRB’s formerly expansive disapproval regarding employee policies. In addition, the political leanings at the NLRB have shifted. Therefore, a distinctive change has recently occurred in the NLRB’s approach as to which employee policies an employer can enforce and which ones an employer can’t.

In a general counsel’s memo dated June 6, 2018, the NLRB instructed its staff that the following policies are okay to include in an employer’s policy manual and won’t necessarily be treated as an unfair labor practice:

  • Civility rules that require employees to avoid disparaging coworkers and using offensive, rude or condescending language to a coworker or customer;
  • Rules requiring that proprietary information and trade secrets of the employer and confidential information of customers have to be protected by employees (however, just saying everything the employee learns at work is confidential is too broad);
  • Rules prohibiting employees from aiding the competition, self-dealing and nepotism;
  • Rules against insubordination or non-cooperation that affects company operations (usually described as refusal to comply with a supervisor’s orders and/or perform work);
  • Rules prohibiting employees making intentionally dishonest statements or misrepresentations;
  • Rules prohibiting disruptive behaviors, such as “fighting, roughhousing, horseplay, tomfoolery, and other shenanigans.” Also included on the naughty list: “yelling, profanity, hostile or angry tones, throwing things, slamming doors, waving arms or fists, verbal abuse, destruction of property, threats, or outright violence.”
  • Rules prohibiting photography or recording in most business settings. “Employers have a legitimate and substantial interest in limiting recording and photography on their property. This interest may involve security concerns, protection of property, protection of proprietary, confidential, and customer information, avoiding legal liability, and maintaining the integrity of operations,” said the 2018 NLRB General Counsel. So, on balance, the NLRB has decided that it is okay for your policy to tell your employees “no photography, no recording”.

But that doesn’t mean that every rule in your employee handbook is acceptable. You still have to consider if your written policy is infringing on your employees’ rights to participate in protected concerted activity—the joining together of employees to discuss or protest the terms and conditions of their employment. If so, by enforcing that policy, you may be committing an unfair labor practice and you can be investigated and penalized by the NRLB.

Here are five policies that your employee policy manual that are still problematic and could get your company into trouble:

  1. Any rule saying that your employees cannot share or discuss their salaries, their benefits, or any other term or condition of their employment. I still find these kinds of “keep your salary confidential” policies in handbooks today, although I have been warning employers about them for years.
  2. Any rule that prohibits an employee from joining outside organizations of their choice, which could include joining a union organizing effort against your business but could also involve them joining a political movement with which you disagree, a hate group or other club or society that you find offensive.
  3. A policy prohibiting employees from talking to the media about the company. Employees can express their opinions about the company online and in the public press. You can only stop an employee from speaking on behalf of the company to the press, rather than a blanket prohibition on all press contact by your employees.
  4. Rules prohibiting your employees from disparaging the company as an employer. This right to disparage the company is at the very heart of the National Labor Relations Act’s protection of union organizing. You can protect a specific employee from being disparaged, mocked, slurred or offended, but not the company in its role as an employer. Social media posts about the company, for example, are protected speech even if they sound disloyal to the company.
  5. Rules that prohibit your employees from using the company name at all online or in public. You have intellectual property rights to keep an employee from using your actual logo or trademark, but the name of the company isn’t protected from appearing in the press or online, including in an employee’s social media posts disparaging the company.

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