Seven Company Handbook Items Drawing Scrutiny

In our 11.19.13 e-lert, we recommended revising your company's policies to account for the rapidly-developing law surrounding social media. While perhaps the most visible, the emerging risks for your business are not limited to social media. First and foremost among additional developing risks is a new focus by the National Labor Relations Board (“NLRB”) on employers' handbooks for policy provisions that employees could interpret in ways that violate the National Labor Relations Act (“NLRA”). As an increasing number of non-union employers have discovered, the NLRB will scrutinize your policies even if there is no union present. The result of a violation could be the nullification of discipline – even a termination decision – based upon the policy that potentially violates the NLRA.

Common policies that have garnered the NLRB's attention and findings of unlawful conduct by employers, include:

    ● Policies barring employees from discussing confidential business information
    ● Employee conduct policies (e.g., policies requiring courteous conduct), to the extent they could be interpreted to prohibit activities protected under the NLRA
    ● Policies requiring employees to direct media and law enforcement inquiries to specific company officials
    ● “At-will” statements that prohibit any modification to an employee's at-will status
    ● Dispute resolution policies that could act to deter employees from making complaints to the NLRB
    ● No-loitering policies, to the extent they are not consistently enforced
    ● “Nonunion employer” statements contained in handbooks

Would your company's handbook survive this new, heightened scrutiny? If you have any questions about how the NLRB has viewed these policies, or if you would like assistance updating your company's handbook, please respond to this email or contact your Elarbee Thompson attorney for further discussion.