Calling the analysis of handbook rules an “evolving area of law” (i.e. whatever the NLRB says is proper on that particular day), NLRB General Counsel Richard Griffin has recently issued a report offering guidance on the propriety of various handbook policies. The 30-page report can be found here. Griffin noted the uptick and continuing barrage of complaints about handbook policies, and reiterated that the NLRB took such charges seriously. Remember, it matters not whether your shop is union or non-union when it comes to handbooks – the NLRB’s decisions apply to both. What is generally at issue when determining whether a handbook policy is lawful is whether the handbook language chills activity under Section 7 of the National Labor Relations Act, which protects workers who engage in concerted activity for their mutual benefit relating to terms and conditions of employment (e.g., wages and hours). Although Section 7 activity is rarely explicitly banned, the buzzword is whether employees might “reasonably construe” a policy to bar such activity. The application of this standard is where the rubber meets the road, and recent NLRB rulings have left employers frustrated and bewildered as the agency has seemed determined to go out of its way to interpret rather mundane and routine policies broader than common sense would allow in order to find them unlawful. For example, the report reiterates that policies against “disrespectful” or “rude” conduct on the part of employees will generally be stricken because an employee might construe this language as a bar to discussing wages or conditions of employment. As one client recently asked me, "Does the NLRB believe that such topics can only be discussed while yelling and screaming?" At bottom, this report serves as a reminder that the NLRB is serious about handbook enforcement and that the heat shows no signs of abating. If your handbook hasn’t been vetted in a while, there is no better time to dust it off. The Death Star will not suffer any rebel activity, and you don’t want to be standing on Alderaan when your outdated handbook gets noticed.
NLRB Shows No Signs of Releasing Its Death Grip on Employer Handbooks
RELATED ARTICLES
Shut Your Mouth: Policy Prohibiting Bad-Mouthing the Company Ruled Unlawful
August 27, 2020 | Labor Relations, National Labor Relations Board
U.S. Supreme Court to Take Up Independent Contractor Arbitration Case
February 28, 2018 | Employment Lessons, Supreme Court Watch, Currents - Employment Law
Sticks and Stones: When Texts and Emails Will Hurt You
July 18, 2017 | Employment Discrimination, Currents - Employment Law
Are You Recording This Conversation?
June 5, 2017 | Employment Lessons, Traditional Labor, Currents - Employment Law
The World According to Trump: Could the Obama NLRB’s Pro-Union Rulings be Undone?
November 17, 2016 | Traditional Labor, Currents - Employment Law
Shut Your Mouth: Policy Prohibiting Bad-Mouthing the Company Ruled Unlawful
August 27, 2020 | Labor Relations, National Labor Relations Board
U.S. Supreme Court to Take Up Independent Contractor Arbitration Case
February 28, 2018 | Employment Lessons, Supreme Court Watch, Currents - Employment Law
Sticks and Stones: When Texts and Emails Will Hurt You
July 18, 2017 | Employment Discrimination, Currents - Employment Law
Are You Recording This Conversation?
June 5, 2017 | Employment Lessons, Traditional Labor, Currents - Employment Law
The World According to Trump: Could the Obama NLRB’s Pro-Union Rulings be Undone?
November 17, 2016 | Traditional Labor, Currents - Employment Law
The World According to Trump: Trump’s Impact on Traditional Labor
November 15, 2016 | Traditional Labor, Currents - Employment Law
Arbitration Agreement Enforced Based on Continued Employment
October 28, 2016 | Employment Lessons, Currents - Employment Law
Fifth Circuit Triples Down on the Legality of Class Action Waivers in Arbitration Agreements
August 15, 2016 | Employment Discrimination, Currents - Employment Law
NLRB Hits Ceiling in Continual Push to Expand Scope of Protected Concerted Activity
July 5, 2016 | Traditional Labor, Currents - Employment Law
EEOC Critical of NLRB’s Investigation Confidentiality Concerns
June 23, 2016 | EEOC, Currents - Employment Law
The Seventh Circuit Rejects Class & Collective Action Waivers In Arbitration Agreements
June 3, 2016 | High Stakes Employment Issues, Currents - Employment Law
NLRB Once Again Puts Employers on Notice Regarding Handbook Policies
October 27, 2015 | Employment Lessons, Currents - Employment Law
Are Your Employees Religious Enough For The NLRB?
August 31, 2015 | Employment Discrimination, Currents - Employment Law
Challenge to NLRB “Ambush Election Rules” Fails
July 31, 2015 | Traditional Labor, Currents - Employment Law
A Reminder from the NLRB to Scrutinize Your &!^@$) Policies
May 26, 2015 | Social Media and Technology, Currents - Employment Law
THE SEC JOINS THE NLRB IN ATTACKING EMPLOYEE CONFIDENTIALITY AGREEMENTS
April 17, 2015 | Non-competes and Trade Secrets, Currents - Employment Law
Non-Union Employers Beware – The NLRB May Come Knocking On Your Door
March 20, 2015 | Employment Lessons, Currents - Employment Law
The Year in Social Media: Four Big Developments from 2014
December 29, 2014 | Social Media and Technology, Currents - Employment Law
NLRB “Likes” Employees’ Facebook Argument
September 2, 2014 | Social Media and Technology, Currents - Employment Law
NLRB Declines to Appeal Class Action Waivers to Supreme Court: What Does it Mean for Employers?
July 21, 2014 | Traditional Labor, Currents - Employment Law
Outlier…or NLRB Shift on Social Media Policies?
July 7, 2014 | Social Media and Technology, Currents - Employment Law
Fifth Circuit Denies NLRB’s Rehearing Request on Class Action Waivers; NLRB Likely to Continue Ignoring Fifth (and Other) Circuit Court Rulings
April 21, 2014 | Traditional Labor, Currents - Employment Law
Not April Foolin’: National Labor Relations Board Finds Employer Rule Requiring Positivity and Professionalism Unlawful
April 7, 2014 | Traditional Labor, Currents - Employment Law
NLRB "Gives Up the Ghost" On Posting Rule Fight
January 9, 2014 | Traditional Labor, Currents - Employment Law
Rule Against Non-Union Workplace “Disruptions” Can Run Afoul of NLRA
October 28, 2013 | Traditional Labor, Currents - Employment Law
NLRB Offers Further Clarification Regarding Expression of Employees’ Section 7 Rights on Social Media
May 23, 2013 | Social Media and Technology, Currents - Employment Law
Congress Rejects Password Protection Amendment To CISPA
April 24, 2013 | Social Media and Technology, Currents - Employment Law
8th Circuit Upholds Class Waivers in FLSA Cases
January 9, 2013 | Fair Labor Standards Act, Currents - Employment Law
Even When You Win, You Might Still Lose: NLRB Strikes Back After Employer Prevails In Federal Court
October 10, 2012 | Traditional Labor, Currents - Employment Law
NLRB Social Media Decisions Leave Questions for Employers
October 4, 2012 | Social Media and Technology, Currents - Employment Law
The NLRB, EEOC and Social Media
September 4, 2012 | Pregnancy, Social Media and Technology, Currents - Employment Law
Supreme Court Issues Long-Awaited Decision in Christopher v. SmithKline Beecham Corp.
June 18, 2012 | Traditional Labor, Currents - Employment Law
A Complete Overview of the NLRB’s Memorandum Regarding Social Media Policies in the Workplace
June 4, 2012 | Social Media and Technology, Currents - Employment Law
RELATED PRACTICE AREAS
Subscribe
Do you want to receive more valuable insights directly in your inbox? Visit our subscription center and let us know what you're interested in learning more about.
View Subscription Center