Last month, I had the opportunity to speak to the American Law Institute for a CLE program on the latest guidance from the NLRB on various employee handbook policies.
When I first wrote about it in March, I had expected to followup shortly thereafter with another recap. But in the meantime, I found that much of what was contained in the reports was already discussed in other blog posts. As such, it seemed kind of silly to just write a “me too” blog post.
The best of these articles was written by Eric Meyer – who actually is a partner of one of my CLE presenters from last month. In it, he provides a detailed summary of the policies that the NLRB found objectionable and, just as importantly, those that the NLRB has blessed.
Another longstanding blog, “World of Employment”, also recaps the report as well and notes that it is important for both union and non-union employers alike:
Virtually anyone – individual employees, union organizers or other non-employees – can (and does) file Board complaints, and one of the first things the NLRB’s investigator will ask you for is your policies. Even if the investigator concludes the charge is without merit, if you are “maintaining” overly broad policies, you may have a fight with the NLRB on your hands – and at the very least you will face a demand to modify the policy and post a notice informing employees of your transgression and your commitment to upholding employee rights to participate in protected, concerted activity.
But as another blog pointed out, even the most innocuous policies can be struck down by the NLRB. A recent case involving T-Mobile struck down a policy like this:
This Handbook is a confidential and proprietary Company document, and must not be disclosed to or used by any third party without the prior written consent of the Company.
Why? Because its being deemed as “chilling” free speech.
So, for employers, it’s yet another reminder – maintaining the status quo on employee handbooks may not be good enough anymore.
If you’d like to learn more, feel free to listen to the webinar on ALI’s website.