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Is your Company Handbook Policy Legal?

There may be a handful of policies that a company would like to include in its employee handbook, but before any is added, make sure that the policy is something that would be upheld in court. The National Labor Relations Board (NLRB) has a lot to say about policies it considers unlawful or that violate an employee's rights. The NLRB is particularly interested in policies that violate Section VII of the National Labor Relations Act (NLRA). Section VII gives employees, "the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities."

So what kind of policies would violate an employee's Section VII rights? Several. But if the policy is well written and ensures that Section VII rights are not violated, the policy may be fine. A couple of things to keep in mind when writing policies are:

  • If a policy in any way restricts employee communication or employee conduct the policy should include very specific examples of what the employer is prohibiting so that employees do not feel that they are being restricted from Section VII rights;
  • Ensure that the context of the policy would not cause an employee to believe it to be a restriction on protected activities allowed by Section VII.

A few examples of policies that the NLRB has taken issue with are:

  • Broad policies stating that employees are prohibited from discussing the company with the media would be considered unlawful by the NLRB. However, a policy that is more specific and states that employees should not speak to the media on behalf of the Company would be allowed.
  • A policy which requires employees to be respectful toward management and supervisory personnel or one suggesting the employees will not take any action that would go against the interests of the company would be considered unlawful. The NLRB suggests the company policy state that employees should work in a cooperative manner with all associated with the company. Employees should not be insubordinate, threatening, intimidating, disrespectful, or assaulting toward anyone while working for the company and if such behavior is found to occur, disciplinary action may take place.
  • Prohibiting employees from disclosing confidential information may be considered an unlawful policy. A policy should not prohibit employees from discussing customer or employee information outside of the company or disclosing the company's or another's confidential or proprietary information. In contrast, the NLRB has said the company policy can ask employees not to disclose unauthorized business secrets or any other information the company may consider to be confidential. The policy can also suggest that the employees not disclose the company's confidential financial data, information regarding those the company does business with or other information that the company maintains that may not be public knowledge.

 For purposes of this HR Clinic we have listed just a few examples of policies a company may want to ensure are properly worded to ensure the NLRB will not find the policy to be unlawful. If a company is drafting a new handbook or updating an existing handbook, reviewing information provided by the NLRB is a good first step in ensuring the handbook policies would be something the company could expect its employees to adhere to.

In March, 2015 the General Counsel for the NLRB published a report entitled "Report of the General Counsel Concerning Employer Rules." This report can be found at...

This document will provide further information on what is provided above and is a summary of what the NLRB has found to be employer rules that would be considered contrary to the right provided to employees under Section VII of the NLRA.

Source: HR Workplace Services