Handling Your Employee Handbook

Your employee handbook is your first impression on new hires. But is yours sending an unsavory, or even unlawful, message?

An employee handbook is, in many ways, a new employee’s first introduction to a company. But what if elements of that handbook that are making a first impression on your new worker are also illegal?

In March, following an onslaught of complaints against various companies’ handbooks — and a 2014 settlement with Wendy’s International over an unfair labor practice charge brought on by unlawful employee-handbook rules — Richard F. Griffin, general counsel of the National Labor Relations Board, issued a memorandum urging all employers to review their own handbooks. While unlawfully phrased rules are often well intentioned, many times they are too vague — and can be seen as prohibiting employees from exercising their rights, including discussion of wages and working conditions, that are protected by Section 7 of the National Labor Relations Act.

“Whether they work for a unionized company or not, the National Labor Relations Act protects employees who want to join together to improve their wages and working conditions,” says Linda Bond Edwards, an attorney with Rumberger, Kirk & Caldwell in Tallahassee. “When there are policies or practices that tend to chill those rights, the National Labor Relations Board can step in and require employers to change the language.”

According to Edwards, the growth of social media brought the NLRB’s attention to non-unionized workplaces as employees began posting about their workplaces on social media.

“As that information got back to the employers, (they) began to make decisions about that employee’s conduct,” she says. “And it caught the attention of the National Labor Relations Board, and they started to get a lot more involved.”

So should you call up your lawyer and give your handbook an overhaul? Here’s the three-prong test:

• Could an employee reasonably construe any of the language in your handbook as prohibiting Section 7-protected activity?
• Were any of your rules written in response to Section 7-protected activity?
• Were any of your rules applied to restrict the exercise of rights provided under Section 7?

Handbooks commonly fail on the first prong: They contain rules that employees could reasonably interpret as working against their right to discuss and explore ways in which they would like their workplaces to improve, and what measures they could take to bring those improvements to life.

Many sections of your handbook could be problematic, including discussions of confidentiality, conflict-of-interest rules and how employees should communicate with supervisors, one another and third parties. Here, section by section, is a break-down of do’s and don’ts.

Confidentiality

Make sure none of your company’s confidentiality rules prevent employees from discussing their terms of employment with one another, as well as with third parties — such as union representatives. The right to discuss wages, hours and workplace complaints is protected. Handbooks should not specifically prohibit discussion of these topics, or include rules that imply such a prohibition.

When saying employees should not discuss “confidential,” “employee” or “personnel” information, put it in context. For example, prohibiting “unauthorized disclosure of business secrets or other confidential information” is a lawful wording since it clarifies “confidential information” and does not make reference to employees’ terms and conditions of employment. 

Employee Conduct Toward the Employer

This section should avoid language that — explicitly or implicitly — prohibits employees from criticizing or protesting their employer’s policies or treatment, privately or publicly. Instead of banning “disrespectful” behavior, employers should call for their employees to act professionally when interacting with coworkers, customers, third parties, etc. Language that encourages courtesy instead of respect achieves the same goal without implying that employees must revere rather than criticize their place of work. These rules, it should be noted, do not protect insubordination or employees who disparage the employer’s product, rather than its labor policies.

Employee Conduct Toward Fellow Employees

Wording in these sections should not deter employees from having lively, even heated, debates about their terms of employment, labor policies, unions, etc. The memorandum points to anti-harassment rules as a place where broad language threatens to be misinterpreted as banning “vigorous debate or intemperate comments regarding Section 7-protected subjects.”

In addition, banning disparaging remarks about company employees can be seen as unlawful, since supervisors and managers are also “company employees” whom employees may criticize in the context of bettering the workplace and its policies. Even a rule that prohibits sending “unwanted, offensive or inappropriate” emails can be unlawfully broad, as this could encompass Section 7-protected emails. A better, more specific approach would ban threats, intimidation and coercion — or specifically ban “harassment” of fellow employees, racial slurs, etc.

Employee Interaction with Third Parties

Make sure none of your rules — especially company media policies — prevent employees from communicating with third parties about terms of employment. Lawful policies can prohibit employees from speaking on the company’s behalf while still allowing them to speak for themselves when approached by the media and third parties about Section 7-related matters.

Use of Company Logos, Copyrights, Trademarks

Protecting copyright holders’ material is important, but company logos can fairly be used for protest materials such as picket signs. Avoid blanket bans on use of the company logo in general and on social media, and opt instead toward encouraging fair use and compliance with copyright laws when considering use of the company logo.

Rules Restricting Photography and Recording

In support of Section 7-protected activity, such as documenting unfair labor practices, employees have a right to make recordings of their workplaces outside of work time (e.g. on breaks). When banning recording and photography, be specific as to what recordings are prohibited, and why: for example, when they breach patient or client privacy.

Rules Restricting Employees from Leaving Work

Language prohibiting employees from leaving work should not prohibit them from striking. Avoid the use of words such as “strikes,” “walkouts” and “disruptions,” which could describe employees leaving their posts for the purpose of protest.

Conflict-of-Interest Rules

It’s far too vague to simply tell employees not to engage in any action that’s not in their employer’s best interest. This could be interpreted as prohibiting strikes and other actions aimed at improving the workplace and terms of employment. Be specific about what is prohibited in context of the company — for example, outside employment with a competitor, or promising or providing competitors with “anything of value.”