Handbook Relief: NLRB Issues Helpful Guidance On Work Rules
Unless you are an HR professional, you may not have known how hard federal regulators had been making the drafting of legally compliant but reasonable employee handbooks. The National Labor Relations Board (NLRB) is, according to its own web site, the “federal agency vested with the power to safeguard employees' rights to organize and to determine whether to have unions as their bargaining representative” and “acts to prevent and remedy unfair labor practices committed by private sector employers and unions.” What many don’t know is that the NLRB has authority over essentially all private employers, not just those who have union employees.
In the recent past, the NLRB has taken very strong positions against employment policies that had long before been accepted as legal. Recently, following the change of administrations, the NLRB has backed off many of these positions. Earlier this summer, the NLRB’s General Counsel issued a memorandum in which he addressed a number of work rules that the Board had previously indicated were improper in some way. So, although you may not have even known there were problems with the following rules, the NLRB has now stated they are presumed lawful:
- Civility rules. Rules that prohibit rude behavior, disparaging the organization, or other such behavior are permissible.
- No-photography rules and no-recording rules. You can have rules prohibiting employees from taking videos or photos and recording conversations at work.
- Rules against insubordination, non-cooperation, or on-the-job conduct that adversely affects operations. On-the-job conduct that negatively affects business operations can be prohibited.
- Disruptive behavior rules. You can ban disorderly conduct or other bad work behavior.
- Rules protecting confidential, proprietary, and customer information or documents. Be aware that you still can’t prohibit employees from discussing employee organizing, work conditions, or wages.
- Rules against defamation or misrepresentation. This seems obvious.
- Rules against using employer logos or intellectual property. It’s important to protect the company’s intellectual property.
- Rules requiring authorization to speak for the company. It is appropriate to have a policy that only certain persons can speak for the company or that authorization must be obtained to speak for the company.
- Rules banning disloyalty, nepotism, or self-enrichment. Once again, seems obvious.
While you may think it self-evident that these work rules are appropriate, before the Counsel memo was issued, the NLRB had indicated they presented problems.
The Counsel memo also identified polices that remain generally unlawful because they would prohibit or limit NLRA-protected conduct, and the adverse impact on the rights guaranteed by the NLRA outweighs any justifications associated with the rule. These rules include:
- Confidentiality rules specifically regarding wages, benefits, or working condition, such as "Employees are prohibited from discussing wages, salaries, commissions, or bonuses."
- Rules against joining outside organizations or voting on matters concerning the employer.
With regulations and interpretations constantly changing, it is always a good time to review your employee handbook for compliance and improvement. If you need help in drafting or finalizing an updated handbook, or if you have any employment related questions, contact your TWG attorney or Eric Metz at ebmetz@twgfirm.com or 316-630-8100.
This email is intended as an information source for the clients and friends of Triplett Woolf Garretson, LLC. Its content should not be construed as legal advice, and readers should not act upon information in its contents without professional counsel.
TWG Attorney and Member Amy Cline braced the cold again this year to raise money for the Salvation Army. Amy has served on the Wichita Salvation Army Homeless Services Advisory Council as a Board Member since 2008. Attorney Cline, pictured with her children Ethan and Olivia on a particularly cold day last December, also personally collected donations for the Salvation Army in front of the Cabela’s store this last year. For more information about how Amy came by her passion to help the homeless as a young lawyer in Wichita, see her feature story in the Wichita Bar Association January 2017 Bar-o-meter.
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