The National Labor Relations Board (NLRB) has received significant attention in recent months for its aggressive efforts to purportedly protect employees’ rights by issuing controversial decisions and guidance regarding policies routinely included in employee handbooks. The NLRB’s recent rulings and guidance memorandum have cast doubt on the validity of such standard employment policies. These developments illustrate the importance of routinely reviewing and updating handbook policies to remain compliant in the ever-changing employment landscape.
Most notably, the NLRB recently has attacked employers’ handbook policies defining at-will employment, regulating the use of social media and mandating confidentiality during workplace investigations, for being violative of the National Labor Relations Act (NLRA), on the basis that they contain overly broad language or prohibitions that restrict or chill employees’ rights.
In reviewing and preparing policies, employers should follow a few principles to ensure they will not be deemed to prohibit lawful activity. A work policy will violate the NLRA if it explicitly restricts, or employees would reasonably understand it to prohibit, employees’ right to engage in protected concerted activity. Accordingly, any vague or ambiguous language, or overly broad prohibitions within a policy that could be interpreted to restrict employees’ rights should be removed, more narrowly tailored or clarified. For instance, with social media policies, employers should remove provisions that discourage discussion about the terms and conditions of their employment, or which generally prohibit employees from posting critical comments about their employer.
Similarly, companies should remove blanket confidentiality policies regarding workplace investigations and evaluate on a case-by-case basis whether an investigation warrants complete confidentiality. The same applies for at-will employment policies, where employers should remove language that employees may interpret as preventing them from engaging in protected activity, such as language that restricts an employee from changing his at-will employment status. Policies should also be specific and include examples or definitions, where possible, to provide context, alert employees of what conduct is prohibited and illustrate the employer’s legitimate business reason for the policies. Employees, moreover, should be required to regularly review employment policies and should receive appropriate training regarding such policies.