Category: Employee Handbook

NLRB Continues Scrutiny of Employee Handbooks

Amelia J. Holstrom Attorney at Skoler, Abbott & Presser, P.C.

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”).

nlrbTwo 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 conditions, 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 that 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.

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NLRB Reigns In Employee Handbook Language

As part of an agenda to give employees more control over the workplace, and to be able to air grievance about the terms and conditions of their employment, the NLRB has been attacking all sorts of company policies and procedures. This time they decided a case against Hyundai which as part of its order required the employer to change the language in its handbook as follows because it could “chill” the employees Section 7 rights under the NLRA:

(a) Within 14 days of the Board’s Order, revise or rescind the rules in its Employee Handbook under the heading Electronic Communications and Information Systems that contains the following language: “Finally, employees should only disclose information or messages from theses [sic] systems to authorized persons.”

(b) Within 14 days of the Board’s Order, revise or rescind the rules in its Employee Handbook under the heading Personnel Files that contains the following language:

“Any unauthorized disclosure of information from an employee’s personnel file is a ground for discipline, including discharge.

(c) Within 14 days of the Board’s Order, revise or rescind the rules in its Employee Handbook under the heading, “Employee Conduct” that contains the following language: “Voice your complaints directly to your immediate superior or to Human Resources through our ‘open door’ policy. Complaining to your fellow employees will not resolve problems. Constructive complaints communicated through the appropriate channels may help improve the workplace for all.”

(d) Within 14 days of the Board’s Order, revise or rescind the rules in its employee handbook under the heading,

“Employee Conduct” that contains the following language threatening disciplinary action for: “Performing activities other than Company work during working hours.”

Hyundai America Shipping Agency, Inc. (28-CA-22892; 357 NLRB No. 80) Scottsdale, AZ, August 26, 2011.