NLRB Crackdown on Employee Handbooks

Even if your HR department is on top of things, some of the policies in your employee handbook probably are now unlawful. Confidentiality policies, professionalism policies, employee conduct policies, solicitation policies, conflict of interest policies, social media policies, and others have come under intense scrutiny by the National Labor Relations Board (“NLRB”) in the last six months. The result could be an unfair labor practices claim filed against your company, even though your company is not unionized.

Here are some of the policies that the NLRB finds unlawful:

  • Your salary is confidential. Do not discuss your compensation with any other employees.
  • Be respectful of the company, other employees, customers and competitors.
  • Do not make statements that damage the company’s reputation or business relationships.
  • Do not make insulting, embarrassing, hurtful or abusive comments about other company employees in person or online.
  • Soliciting, collecting funds, or distributing literature on the company premises without authorization is prohibited.
  • Do not send unwanted, offensive or inappropriate emails.
  • Employees are not authorized to speak to any member of the media about company matters unless authorized to do so by management.
  • Do not use any company logos, trademarks or graphics or advertising materials without permission.
  • Taking unauthorized pictures or video on company property is prohibited.

The NLRB’s general counsel issued a memo in March 2015 to help the regional offices of the agency in its review of the policy manuals of companies all across the country. Several unfair labor practice investigations have already been filed in the Texas Panhandle over written employment policies.

The NLRB is scrutinizing any policy that it believes will make it unlikely that an employee could exercise his rights to participate in “concerted activity” with other employees that might lead to your employees documenting and banding together to insist on better working conditions.

Never before has the NLRB been as intrusive into non-unionized workplaces. But in the last couple of years, the agency first put social media policies and salary discussion policies in its crosshairs. Now it seems that almost every policy is suspect.

Employers have long found that written employee handbooks significantly reduce workplace misbehavior. They also provide one of the few defenses that employers have in employment discrimination cases. Substance abuse policies and sexual harassment policies are often required either by law or by insurers. So giving up on employment policies completely is not the answer.

Instead, every employer should be getting its employee policies reviewed in light of the NLRB’s crack down. Take out every dictate that appears to prevent employees from discussing working conditions with one another in person or on social media. For any questionable policy, add a disclaimer that says “Nothing in this policy is intended to interfere with, restrain or prevent employee communications regarding wages, hours or other terms or conditions of employment. Our employees have the right to engage in or refrain from such activities.”

For more guidance, you can talk to your employment lawyer or review the NLRB General Counsel’s March 18, 2015 memo here.

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