As we start 2014, one of the main pieces of advice I have been giving clients is: Review your employee handbook!
While I generally recommend employers review their handbooks each year to keep up with constantly evolving labor and employment laws, I know this recommendation is not always followed. However, this type of review is particularly necessary in 2014 for at least one reason — the National Labor Relations Board’s focus on the legality of several long-standing policies contained in almost all handbooks.
The NLRB is responsible for enforcing the National Labor Relations Act. The act traditionally (albeit mistakenly) has been perceived as applying only to unionized workplaces. In fact, the act applies to virtually all workplaces. Despite this, for quite some time the NLRB has remained focused, for the most part, on issues that affect unionized workplaces, leaving nonunionized workplaces off the hook. Recently, however, the NLRB has begun expanding its reach into nonunionized workplaces in a manner that should make all employers throughout the country, including in Maine, sit up and take notice.
Specifically, the NLRB’s focus has shifted to standard policies that most companies have included in their employee handbooks as a matter of course for years without any concern about their legality.
It is very important for employers to be able to recognize the policies that may be affected by the National Labor Relations Act and know how to amend those policies so that they are compliant with the NLRB’s way of thinking.
So what types of policies has the NLRB been focusing on? Policies that are overbroad and could be read to “chill” employee rights under Section 7 of the act. The main Section 7 right at issue is the employee’s right to engage in “concerted activities” for the purpose of “mutual aid or protection” — most commonly thought of as an employee’s right to work with other employees to improve wages or working conditions at the company. It is an “unfair labor practice” under the National Labor Relations Act for an employer to interfere with its employees’ right to engage in these types of activities.
Some of the specific policies that the NLRB has been focusing on are:
— Confidentiality policies that prohibit employees from discussing their wages and/or disciplinary action taken by the company.
— Policies prohibiting “gossiping” by employees.
— Complaint policies requiring employees follow internal grievance procedures.
— Policies prohibiting “fraternization” by employees.
— Dress codes prohibiting union insignia from being worn.
— Policies restricting employees’ use of social media (a particularly hot topic for today’s employers for several reasons).
— At-will employment policies that can be construed as not allowing an employee to change his or her “at-will” status through collective bargaining.
— Nondisparagement policies prohibiting employees from “disparaging” their employer.
— Policies prohibiting “inappropriate” postings online or on company intranets.
— Bullying policies that can be applied broadly to prohibit speech.
— Policies prohibiting solicitation and distribution during time outside of work or off company premises.
— Broadly worded policies requiring “respectful” and “appropriate” conduct.
So, what should an employer do? This is a complicated area of the law. All companies should have either in-house counsel or their outside employment attorney review the company’s policies, particularly policies restricting employee communications or speech, to ensure that the policies are compliant with the National Labor Relations Act. This should include the addition of a disclaimer at the end of certain policies stating that the policy is not intended to restrict an employee’s Section 7 rights under the act.
Take this advice and start off 2014 on the right foot!
Shiloh Theberge is an associate in the New England office of Fisher & Phillips. She counsels clients on state and federal employment laws and has litigated numerous cases on behalf of management involving employment discrimination, sexual harassment, wrongful discharge, wage and hour laws, disability/reasonable accommodations, and family and medical leave laws in federal and state courts.
Disclaimer: The materials in this column are provided for informational purposes only, do not constitute legal advice, and do not necessarily reflect the opinions of Fisher & Phillips LLP or any of its lawyers or clients. Neither this column nor the information contained herein is intended to create an attorney-client relationship between the viewer, reader, recipient or user and Fisher & Phillips LLP.