National Labor Relations Board Taking Hard Look at Handbooks

March 10, 2016

By Robert Bowes with Alex Jones
A recent point of emphasis for the National Labor Relations Board (“NLRB”) has been to ensure that employment handbooks comply with the National Labor Relations Act (“NLRA”). It has become the NLRB’s standard practice to examine employee handbooks for potential violations whenever a charge is brought against an employer, regardless if the charge is related to anything in the employer’s handbook.
Section 7 of NLRA permits employees to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection,” while Section 8 prohibits employers from limiting or interfering with an employee’s Section 7 rights. The NLRB takes issue with many common (and otherwise common sense) handbook policies, which it believes infringe on Section 7 rights, including standard confidentiality, at-will employment, no taping in the workplace, and open-door dispute resolution policies.
Confidentiality and similar clauses should be specific to items such as sensitive company secrets. Employers should avoid overly broad language that employees may construe as limiting their ability to discuss employment matters or working conditions. The NLRB has consistently held that generic, broad confidentiality clauses violate employees’ Section 7 rights.
Employers should also avoid provisions stating that an employee’s at-will status cannot be modified or changed. The NLRB has reasoned that such language could deter employees from engaging in concerted activity, in particular, concerted activity aimed at unionizing.
The NLRB recently concluded that an outright ban on the use of recording equipment at work violates the NLRA. The NLRB believes that such a policy may deter employees from documenting, among other things, (i) unsafe or hazardous working conditions, (ii) anti-union sentiments, or (iii) evidence pertaining to an employment-related action. The NLRB does not completely prohibit employers from limiting their employees’ use of recording devices at work, but such policies must be narrowly drawn, so that employees will reasonably understand that Section 7 activity is not being restricted.
Many handbooks include dispute resolution policies encouraging employees to submit any problems to the human resources department. These types of clauses are not necessarily NLRA violations, but the NLRB wants to ensure employers are not requiring employees to first contact human resources before filing a charge with the NLRB.
The bottom line is that the NLRB is taking a closer look at employment handbooks, and employers need to protect themselves by doing all they can to ensure that their handbook policies cannot, in any way, be construed as limiting an employee’s Section 7 rights.