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Greenbaum, Rowe, Smith & Davis LLP Client Alert

On March 18, 2015, the Office of the General Counsel of the National Labor Relations Board (NLRB), the federal agency primarily responsible for administering and enforcing the National Labor Relations Act, issued guidance regarding certain common employee handbook provisions that may violate the Act.  The recent guidance will likely require changes to many standard employment policies governing, among other areas, workplace civility among employees and toward employers, confidentiality, harassment, conflicts of interest, use of computers, email and social media, and employee use of employer trademarks and other protected property. 

The Act establishes the rights and obligations of employees, employers and labor organizations with respect to collective bargaining and related activity.  Section 7 of the Act, in particular, gives employees the right to form, join or assist labor unions and engage in other “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  Such protected “concerted activities” (referred to as “Section 7 activity”) include employee communications with each other and certain outside parties regarding wages, hours, benefits and other terms and conditions of employment.  The Act makes it an “unfair labor practice” for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.”  The Act’s protections apply to most private-sector employees, regardless of whether they belong to a union or the size of their employer.

A workplace policy that does not explicitly prohibit Section 7 activity nonetheless violates the Act if employees reasonably would interpret the policy to prohibit protected activity.  According to the General Counsel’s recent guidance, the following common employee handbook provisions may violate the Act because they are overbroad or otherwise could have a chilling effect on permitted Section 7 activity:

The General Counsel’s guidance finds unlawful a number of widely used employment policies on the basis that they are vague and overbroad and, whether or not intended, could be construed as prohibiting protected employee conduct.  Unfortunately, the guidance does not provide a clear roadmap to help employers appropriately tailor their workplace policies to protect legitimate business interests without restraining employees’ exercise of rights protected under Section 7.  The guidance is fact specific and, in some respects, nuanced and difficult to apply.  For example, certain handbook provisions, standing alone, are deemed overbroad as impinging on Section 7 activity, while similarly worded provisions are deemed lawful when viewed in context or accompanied by examples to clarify that the policies are not intended to prohibit discussion of working conditions or other protected activity.  As a result, it is not always clear under the guidance why one policy is lawful and another policy, seemingly intended to address the same workplace conduct, is not.

Employers are always well-advised to review their employee handbooks on a regular basis to help ensure their compliance with rapidly evolving employment laws and changes in employer policies and procedures.  While courts may ultimately disagree with the position of the NLRB in certain instances, employers who ignore the recent guidance of this agency would do so at their own peril. 

In addition, in view of the recent flurry of NLRB decisions and other guidance impacting employer policies, including the recent handbook guidance discussed above, it would be especially prudent for employers to review their employee handbooks with their counsel to help ensure that they are up-to-date and compliant with the standards enunciated by the NLRB.

The author of this Alert, Lisa J. Clapp, is a member of the firm’s Employment Law Practice Group. Please contact Ms. Clapp, or Practice Group co-Chair Thomas C. Senter, with questions or requests for additional information.