In yesterday’s Advisor, BLR® Legal Editor Holly Jones, JD, presented new National Labor Relations Board (NLRB) guidelines for employee handbooks; today, we share the rest of Jones’s analysis, including specific examples of proper wording of policies—and ways to effectively revise unlawful phrasing.
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NLRB General Counsel Richard F. Griffin, Jr. recently provided employers with valuable guidance on employee handbooks, including specific examples of language NLRB deems acceptable and in violation of employee rights under Section 7 of the of the National Labor Relations Act (NLRA).
Yesterday, we explained the types of employer policies that come under NLRB’s scrutiny, along with specific examples from the memo of handbook language related to workplace conduct that was found unlawful by the NLRB. Here are some examples from the memo of language that, by themselves or based on context within the handbook, were found acceptable.
For example, the following language was upheld because the policies required employees to be respectful to customers, competitors, and the like, but did not mention the company or its management in the requirements. Thus, an employee would not reasonably believe that these rules prohibit Section 7-protected criticism of the company or its policies.
- No “rudeness or unprofessional behavior toward a customer or anyone in contact with” the company.
- "Employees will not be discourteous or disrespectful to a customer or any member of the public while in the course and scope of [company] business.”
Similarly, rules that require employees to cooperate with one another and/or the employer in the performance of their work have been upheld as long as employees could reasonably understand that the rule’s efforts to promote a civil work environment do not implicate Section 7 rights. For example:
- “Each employee is expected to work in a cooperative manner with management/supervision, coworkers, customers, and vendors.”
Finally, rules that would be understood to be limited based on their context within the handbook were upheld. So where a rule’s prohibition on “disrespectful” behavior toward management might be problematic when standing alone, it was upheld because it appeared in a larger provision that was focused on serious workplace misconduct such as insubordination, threats, and assault.
- "Being insubordinate, threatening, intimidating, disrespectful or assaulting a manager/supervisor, coworker, customer or vendor will result in" discipline.
Therefore, employees would reasonably understand, based on the context, that this provision wasn’t intended to prohibit mere criticism.
The memo provides similar discussion and context-focused examples of lawful and unlawful language for each of the seven broad policy areas noted in yesterday’s article.
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Case Study: Example Revisions to a Corporate Handbook
The memorandum also dissects an employee handbook that was found to be unlawful—specifically the one used by Wendy’s International—and describes the changes that were negotiated to bring that handbook into compliance with Section 7.
For example, the Wendy’s handbook included a social media policy that required employees to:
“Refrain from commenting on the company’s business, financial performance, strategies, clients, policies, employees or competitors in any social media, without the advance approval of your supervisor, Human Resources and Communications Departments. Anything you say or post may be construed as representing the Company’s opinion or point of view (when it does not), or it may reflect negatively on the Company. If you wish to make a complaint or report a complaint or troubling behavior, please follow the complaint procedure in the applicable Company policy.”
This policy was found to be problematic and overly broad because it went beyond preventing employees from speaking on behalf of, or in the name of, Wendy’s. Rather, the policy could be interpreted to prohibit an employee from commenting about any of the company’s business, policies, or employees without prior authorization, particularly when the comments might reflect negatively on the company.
This policy was amended to include more limited and specific language such as:
- Do not comment on trade secrets and proprietary Company information (business, financial, and marketing strategies) without the advance approval of your supervisor, Human Resources, and Communications departments.
- Do not make negative comments about our customers in any social media.
- Use of social media on Company equipment during working time is permitted, if your use is for legitimate, preapproved Company business. Please discuss the nature of your anticipated business use and the content of your message with your supervisor and Human Resources. Obtain their approval before such use.
Bottom Line
As the memo notes throughout its examples, do keep in mind that context matters; that is, the NLRB reviews employee handbooks and workplace policies in context of their entirety and will not isolate a sentence or paragraph for review.
Therefore, language that would be impermissible in isolation could become compliant in the handbook as a whole based on its context (where consideration would also be given to the use of disclaimers or “savings clauses”; section headings, titles, or other elements that would clearly limit application of a policy to a particular situation; location in the handbook; and other factors). This also means that the examples provided in this recent memo should be considered only guidance rather than bright-line do’s or don’ts.
Because these decisions can turn on a single word or phrase, it is always wise to have experienced legal counsel review drafts of new or revised employee handbooks and policies.
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