Does your Employee Handbook Violate the NLRA?

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doug for news.jpgIf you're a non-governmental North Carolina employer, there is a 98% chance you operate in a non-union environment.  And as a result, you probably tune out articles mentioning unions, the National Labor Relations Act (NLRA) or the National Labor Relations Board (NLRB).  I understand, we're all busy.  In case you missed it, there have been many decisions over the last few years where the employee handbooks of NON-UNION employers were found to be in violation of Sections 7 and/or 8 of the NLRA.  So if you're one of the 98% of non-unionized employers in North Carolina, it's imperative you make sure your handbook doesn't expressly violate the NLRA.

 

The National Labor Relations Act protects the rights of employees to act together to address conditions at work, with or without a union.  Under Section 7 of the National Labor Relations Act (NLRA), employees have the right to: “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. . . .” Section 8 of the NLRA states that it shall be an “unfair labor practice” for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.”

 

In the past year, the NLRB has criticized and struck down handbook language including:

 

  • “At-will” disclaimers.
  • Social media policies.
  • Policies discouraging employees from discussing wages.
  • Mandatory arbitration provisions.
  • Requirements to keep internal investigations confidential, preventing employees from revealing the identities of those involved in the investigations.
  • Prohibitions on certain employee communications and behavior, both inside and outside the workplace.  In a decision last year the NLRB found to be unlawful several handbook statements about not making negative comments about fellow team members, speak well clauses, representing the company in the community in a positive and professional manner, and prohibitions to engaging in or listen to negativity or gossip.
  • Rules requiring management’s authorization for distribution of literature during non-work time in non-work areas.
  • Most recently in Remington Lodging & Hospitality, LLC, dba The Sheraton Anchorage, the NLRB found that four of five handbook rules were unlawful on their face. Employees would reasonably interpret a rule prohibiting them from having a “conflict of interest” with the employer’s as encompassing activities protected by the Act. Particularly when viewed in the context of the employer’s other unlawfully overbroad rules, employees would reasonably fear that the rule prohibits any conduct the employer may consider to be detrimental to its image or reputation or to present a “conflict” with its interests, such as informational picketing, strikes, or other economic pressure.

 

 

The bottom line is that the NLRB is likely to scrutinize employee handbook policies that contain broad language concerning employee conduct and will find them unlawful if employees reasonably could construe them as tending to chill their Section 7 / 8 rights.  On March 18, 2015, NLRB General Counsel Richard Griffin issued the “Report of the General Counsel Concerning Employer Rules” that details the types of handbook rules and policies that his office views to be unlawful under the National Labor Relations Act (NLRA).  His report is attached to this article. 

 

I imagine a few of you are probably asking "So what?"  Good question.  If you're in an industry prone to union organizing attempts you definitely want to take a close look at your handbooks as these violations are good fodder for a union to use against you during a campaign.  Currently targeted industries include Southeastern Manufacturers, Healthcare, certain "white-collar" employers like finance and banking, and employers with expanding operations. 

 

For all other employers, I would consider this issue through the same cost/benefit lens you run all other HR practices through.  If found to be in violation at a minimum you'll be required to fix the problem and post a notice to your employees to that affect. Total compliance is probably not attainable.  There are some practices you definitely want to change and others that may not work for your workforce.  Give our Advice and Resolution team a call to talk through your particular situation or if you would like us to review part or all of your handbook.  Your membership gives you unlimited access to our advisors to discuss things like handbook / policy issues and to get your entire handbook (or parts of it) reviewed.

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