In August, the National Labor Relations Board changed the law regarding employer workplace rules and employee handbooks. Under the new framework, many rules and policies were expected to be considered presumptively unlawful, and employers have since been bracing for the return of the Board handbook police last seen during the Obama era.
A series of recent decisions sheds light on the Board’s new approach to evaluating workplace rules and, unsurprisingly, it is bad news for employers.
Protection of confidential information not allowed: A recent decision issued against General Motors found several employee handbook rules to be unlawful – including one that prohibited employees from using or removing, without proper authorization, company confidential information. Other rules found unlawful include:
- Prohibiting “distracting the attention of others,”
- Prohibiting “wasting time...during working hours,” and
- Prohibiting making malicious statements about coworkers or the company.
In each case, the Administrative Law Judge found the rules to illegally “chill” employee rights to concerted activity. Notably, the rules were included in the collective bargaining agreement and, therefore, agreed to by the union. Nevertheless, the judge still found them unlawful.
Other common workplace policies found unlawful: Other cases issued over the last few months provide further examples of seemingly straightforward, reasonable workplace policies found unlawful, including prohibitions on:
- Unauthorized disclosure or use of confidential information (once again)
- Personal phone calls during work hours
- Solicitation activities in work areas for any purpose during work hours
- Clothing other than company-branded wear
The Board is also re-opening previously resolved cases to apply its new standard for evaluating workplace rules. This means that even rules that were once deemed lawful may no longer be safe.
Takeaways for employers:
- There is no more waiting to see what the Board will do – without doubt, the handbook police are back.
- Employers should reexamine their handbooks and existing workplace policies to ensure they are unambiguous and tailored for specific, justifiable purposes.
- Employers should consider including general disclaimer language that makes it abundantly clear to employees that no rule or policy is meant to infringe upon NLRA rights.
- Nearly every rule may be at risk under the NLRB’s approach.
