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Does New Guidance Suggest your Policies Violate the NLRA?

In a rapidly changing legal environment, organizations may find their employment policies are not only obsolete but possibly illegal. In previous months, we've highlighted a number of policy-related areas of concern (Starting the New Year Right: a 2015 Employment Law Checklist and Seven Company Handbook Policies Drawing Scrutiny) and we have suggested the need to review and update policies to reflect recent changes (The Holidays are a Time for Giving: new policies, that is!).

Recent guidance from the General Counsel of the National Labor Relations Board (NLRB), which has been making rapid, significant changes in what policies are no longer lawful, reinforces this advice. Earlier this month, the General Counsel issued a memorandum outlining a number of common policies, typically found in employee handbooks, that are nonetheless viewed by the NLRB as violative of the National Labor Relations Act (NLRA).

While the memorandum touched on a number of policies common in the workplace, several of the General Counsel's positions could be seen as striking a blow against a harmonious workplace. For example, the memorandum noted that policies restricting employees from engaging in certain disrespectful behavior toward their supervisors or co-workers may unlawfully restrict an employee's right to discuss and debate their terms and conditions of employment. Policies that restrict an employee's ability to discuss working conditions with the media or use company logos, copyrights and trademarks in communications may be similarly unlawful. While the General Counsel's guidance sets forth numerous examples of policies that have been found unlawful, it does also provide some examples of policies that have been found lawful.

In light of this guidance, employers should take a careful look at any employment policies that restrict an employee's rights to communicate-with management, with co-workers or with third parties-to consider their implications under the NLRA. Employers should keep in mind, however, that the General Counsel's memorandum is not an amendment to the NLRA and that future administrative law judges and NLRB members and federal courts may take a different view of employment policies.

Should you have any questions about revising your policies in light of this guidance, or any other questions about your employment policies, please contact an Elarbee Thompson attorney.

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