Nearly every employer needs an employee handbook. It’s the official documentation of workplace policies. It sets expectations and outlines rules employees need to understand. But if you aren’t careful, it can create new problems.
One example in the spotlight right now is employee handbook language that violates employee rights under the National Labor Relations Act (NLRA). In a March 2015 memorandum, the National Labor Relations Board (NLRB) cited fast-food chain Wendy’s for 14 violations that many employers would consider standard code-of-conduct language.
One policy deemed unlawful in Wendy’s handbook is particularly notable: you can’t prohibit an employee from “making false accusations against the company.” Human resources could face a challenge when the C-Suite demands action in response to an employee’s false claims.
The NLRA applies to all employers, not just those with union employees. The sticky part of the new guidance is that even if an employer doesn’t intend for a handbook policy to restrict protected behaviors—such as the right to self-organize or collectively bargain—employees interpreting it that way is enough to cause problems.
Not only is it good to review your handbook periodically, but you should look at it from the NLRB’s perspective. Specific language and perceived restriction of employee rights are the two keys to creating functional and concrete employee policies.
It may seem simple on the surface, but each company’s handbook should be unique, and each word in it carefully chosen.
Look at Language
Often a policy is considered unlawful because it’s broadly worded. NLRB guidance suggests specific examples and context.
For example, a policy stating employees should be “respectful of the company and other employees” could be seen as restricting the employees’ Section 7 right to criticize their employer.
The policy is lawful when written: “Being insubordinate, threatening, intimidating, disrespectful, or assaulting a manager/supervisor, coworkers, customers, or vendors will result in discipline.”
Review the Rights
Under the NLRA, employees can discuss with other employees or complain about their pay, terms and conditions of employment, and how their supervisors treat them. They also have the right to support or join unions and to engage in other concerted activities.
Any handbook language that could be interpreted as restricting employee rights, directly or indirectly, as set forth by the NLRA should be removed or clarified.
Rules that Can’t be Rules
• Restricting employees from using logos, copyrights, or trademarks
NLRB position: Employees have a right to use the name and logo on picket signs, leaflets, and other protected materials.
• Prohibiting photography or recording in the workplace
NLRB position: Policies become unlawful if they would reasonably be read to prohibit the taking of pictures or recordings on nonwork time.
• Restricting employees from leaving work without authorization
NLRB position: Rules that regulate when an employee can leave work are unlawful if employees reasonably would read them to forbid protected strike actions and walkouts.”
• Enforcing conflict of interest rules (such as organizing a boycott of the employer’s products or services)
NLRB position: A policy passes muster if it includes examples of, or otherwise clarifies, that conflict is limited to legitimate business interests (note: as that term is defined by the General Counsel and the Board), and employees will reasonably understand the rule to prohibit only unprotected activity.