On March 18, 2015, the General Counsel for National Labor Relations Board released a report summarizing recent cases where policies in employee handbooks were found to violate Section 7 of the National Labor Relations Act (NLRA).
Section 7 gives employees the right to form unions and engage in other protected types of concerted activity. Specifically, among other things, Section 7 allows employees to engage in the following activities:
- The right to discuss wages, hours and other terms and conditions of employment with other employees and non-employees, including union representatives
- The right to criticize or protest employer’s labor policies or treatment of employees
- The right to argue and debate with other employees about unions, management and terms and conditions of employment
- The right to communicate with the news media, government agencies and other third parties about wages, benefits and other terms and conditions of employment
- The right to use the employer’s name and logo on picket signs, leaflets and other protest material
- The right to photograph and make recordings in furtherance of protected concerted activities, including the right to use personal devices to take such pictures and recordings
- The right to go on strike
- The right to engage in concerted activity to improve the terms and conditions of employment, even if that activity is in conflict with the employer’s interests
In recent cases, the General Counsel determined that policies in employee handbooks were unlawful if employees would not reasonably understand the policy to prohibit a Section 7 protected activity. In other words, if the policy is seen as restricting an employee’s Section 7 rights, it would be deemed unlawful under the NLRA. The General Counsel’s report was intended to summarize these holdings and clarify the government’s position.
For example, a policy which requires the employee to keep the employer’s business information confidential and not to disclose such information about the business, customers, vendors and the like is lawful; but a policy which prohibits discussing wages, hours, workplace complaints and may be unlawful. Similarly, a policy which requires employees to be “respectful of the company” may be construed to ban protected criticism or protests regarding supervisors, management or the company in general. However, policies prohibiting serious misconduct, such a insubordination, threats and assault, would still be lawful. General Counsel also determined that a policy prohibiting employees from speaking to the media about company matters unless authorized by the company to do so or requiring all media inquiries be directed to a designated company official was unlawful because employees reasonably would read such policy to ban protected (Section 7) communications with the media.
These are only a few of the many examples of the kinds of policies which the General Counsel found problematic. Still, the line between what is lawful and what may be deemed unlawful is blurry at best and has, by this report, been made less clear. Smart employers would benefit from having skilled employment counsel review their employee handbooks to ensure compliance under the NLRB’s newly-issued guidelines.
For a thorough review of your employer/employee handbooks and their compliance with the NLRB guidelines, please contact Ellen M. Leibovitch below.
Ellen M. Leibovitch
Florida Board Certified Labor and Employment Attorney
ASSOULINE & BERLOWE, P.A.
1801 N. Military Trail, Suite 160
Boca Raton, Florida 33431
Main: (561) 361-6566
Fax: (561) 361-6466
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