The National Labor Relations Board and Your Employee Handbook

March 19, 2015

Many HR Professionals don't worry about the NLRB. And why should they? Their employees don't have a union, no union has ever tried to organize their workforce, and unions haven't been active in their region or business sector. Actually, those managers probably don't need to worry too much­­--until they do.

All it takes is one disgruntled employee stumbling upon the NLRB's web site to get the ball rolling. Say an employee is fired for insubordination. Then, somehow, the former employee finds his or her way to the NLRB. He or she files an unfair labor practice charge claiming he or she was unlawfully discharged for engaging in protected concerted activity.

In response to the NLRB's inquiry, the Company produces a copy of its handbook, which clearly identifies insubordination as cause for immediate discharge. Shortly afterwards the Company receives an amended unfair labor practice charge. In addition to claiming the employee was unlawfully discharged, the amended charge alleges the Company also violated the National Labor Relations Act by maintaining unlawful rules that:

• Prohibit employees' use of the Company's e-mail system during non-working time;

• Prohibit employees from taking photographs at any Company location;

• Prohibit employees from disclosing confidential information, including human resources related information and investigations by outside agencies, outside the Company;

• Prohibit employees from disclosing personal information about other employees to co-workers or outsiders;

• Prohibit employees from being on the Company's premises before or after their shifts;

• Prohibit employees from discussing Company business with clients or third parties;

• Prohibit congregating or gossiping with co-workers while on the clock;

• Prohibit reading unauthorized materials while on the clock;

• Prohibit the disclosure of "sensitive" information on social media;

• Prohibit employees from posting on social media links to the Company's website or referring others to the Company's website without prior management approval;

• Prohibit employees from posting on social media derogatory attacks on other employees or management;

• Prohibit employees from posting on social media material that violates the privacy of another;

• Require employees to follow a chain of command, and to report workplace problems to their supervisors or managers;

• Require employees to waive the right to file or participate in a group, class or collective action;

• Provide that, without exception, employees may be discharged at-will.

Shocked? Don't be. Rules on each of these topics have been found by the current NLRB to constitute unlawful restraints on employees' exercise of their rights under the National Labor Relations Act. Context and details are important, obviously, and there are always exceptions. Also, limiting language, stated exceptions, or examples of how a rule may be applied might render a suspect policy sufficiently narrow to avoid a violation. And, the courts have not yet fully addressed all of these topics. Still, given the current NLRB membership, no HR professional should be too surprised when this Board determines that an employee would "reasonably" construe a rule to prohibit activity protected by the Act--union or no union.

For further information or any questions please contact Joseph W. Bryan at or 678.336.7192.

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