The National Labor Relations Board General Counsel issued a report earlier this year commenting on unlawful employee handbook rules. The goal of the report is to help employers avoid establishing rules that may discourage employees from engaging in activities that are protected by the National Labor Relations Act.
The Employee Handbook
Section 7 of the Act protects concerted activities by employees seeking to improve their pay and working conditions. The NLRB considers unlawful any employee handbook rule that could reasonably be construed by employees as restricting activities protected by Section 7. This is true even if the rule is not intended to restrict a protected activity.
The General Counsel’s report focuses on vague or broadly worded policies. For example, a policy that prohibits employees from discussing confidential personal information with other workers sounds innocent enough.
However, the NLRB would say that this wording is so general that it could be construed to mean that employees may not discuss wages with other employees. According to the NLRB, such discussions might be necessary to the improvement of wages. If the employer would define confidential information and otherwise provide context to the policy, making it clear that it does not apply to employee wages, it might pass muster.
The report covers a range of handbook topics, pointing out examples of policies that would be considered unlawful. The examples addressed workplace issues including, but not limited to, the following:
- confidentiality;
- employee conduct toward other employees;
- employee conduct toward the employer;
- off-duty use of social media; and
- on-duty use of electronic devices.
An important thing for employers to recognize is that the authority of the NLRA extends to all private sector employers, with just a few exceptions. It is not limited to private employers that are unionized. The initial intent of the Act was to protect the right of private sector employees to unionize. Toward that end, it forbids employers from engaging in activities that would interfere with a union organization. Consequently, while the Board is not authorized to intrude on any and all operations of a private business, it can intrude when the business might be impeding the right of its workers to seek union representation.
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