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A drafting tightrope: NLRB’s new handbook guidelines shift balance

BLawyers who advise businesses need to know about new guidance on drafting employee handbooks, provided in a March memorandum issued by the General Counsel of the National Labor Relations Board.

The memorandum surveys common topics covered in handbooks, such as confidentiality and communications within and outside the workplace, and sets out examples of employee conduct rules that have been struck or upheld by the NLRB.

Therein lies the problem, lawyers say. When you take a close look at the 30 pages of rules, it’s sometimes hard to distinguish the lawful from the unlawful.

Federal labor law protects employees’ rights to discuss their wages, hours and terms and conditions of employment under Section 7 of the National Labor Relations Act. That protection extends to non-union workplaces, as well as union shops.

A handbook rule can violate those worker rights even if the rule does not directly ban such discussion. If employees would “reasonably construe” the rule’s wording to have a “chilling effect” on Section 7 rights, it may be unlawful, according to NLRB General Counsel Richard F. Griffin Jr.’s memorandum 15-04.

That chill has spread in recent years, as the NLRB has broadened its interpretation of the kinds of rules that may discourage employee communications about workplace issues. The agency’s focus has shifted the balance between employer and employee rights that lawyers aim for when drafting workplace rules.

“A number of these things will catch practitioners off guard,” said Richmond lawyer Gregory B. Robertson. The memo is “carving out brand new territory” for labor and employment lawyers.

Historically, employers “have always dealt with the NLRB in the union context,” but going forward, their oversight “will play out much more” in the wider employment setting, as the agency seeks to extend its influence to the nearly 90 percent of the labor force that is not unionized, Robertson said.

Changing course

The NLRB began to shift direction several years when it started looking at employer rules on what employees could share on social media, according to Roanoke lawyer Victor O. Cardwell. The new GC memo confirms that the agency is widening its attention to other employee handbook rules, lawyers said.

In the process, it is upending an informal consensus about what has worked in employee handbooks.

The current approach “falls under the category of the death of common sense,” Norfolk lawyer Raymond Hogge said. The memo shows that, instead of looking at what a “reasonable” employee would find “chilling,” the agency will look at whether any employee could ever imagine the rule at issue would interfere with the right to discuss workplace terms and conditions, according to Hogge.

“There’s been a clear shift from sensible, well-understood standards of conduct. Now there’s not a clear understanding of what’s permissible and what’s not” in employee handbook language, said lawyer Melissa Jackson Howell, also of Norfolk.

Points of conflict

Some of the look-alike rules in the GC memo have left lawyers “scratching our heads” on how to balance employee rights with employer interests, Howell said.

For instance, the law protects employees from unlawful harassment and discrimination, and case law says having an established complaint procedure for employees to use can protect the employee and offer the employer a defense.

Yet the memo concluded that a directive to employees who “wish to make a complaint or report a complaint or troubling behavior to please follow the complaint procedure in the applicable Company policy” was deemed to “chill” an employee’s right to discuss employment-related complaints with “persons and entities” other than the employer, Howell said.

Comparing some rules that get the thumbs-up sign with those found wanting, the distinctions are “so miniscule” they don’t really tell employers what to do and what not to do, Hogge said.

Even with the memo’s efforts at clarification, many issues are “still not black and white, and that creates additional confusion,” Richmond lawyer Karen S. Elliott said.

Take the rule on abusive and offensive conduct toward supervisors, cited by Hogge.

“If you lined up 100 employees and asked what treatment is abusive or disrespectful, you’d be hard-pressed to find an employee who thought it involved employee rights to collective bargaining,” Hogge said. Employees are much more likely to think the rule is meant to discourage yelling, name-calling, cursing and bullying.

Cardwell pointed to the memo’s discussion of rules on leaving the workplace. The agency nixed rules that prohibited “walking off the job” or “failure to report to your scheduled shift for more than three consecutive days without prior authorization.”

Being where you’re supposed to be, when you’re supposed to be there, sounds like a basic workplace rule. But the GC said these rules, as stated, interfered with an employee’s right to strike.

A general rule against disparagement might seem like a good way to promote workplace civility. It may be expected to cover firing an employee for cursing at a co-worker, Elliott said. But if the cursing is directed toward a supervisor and carries some suggestion of a complaint about the job conditions, it may be protected under Section 7.

The employer has to comply with equal-opportunity laws that require a recitation of “poster rights” under federal anti-bias laws such as Title VII, the Family and Medical Leave Act and the Americans with Disabilities Act, Elliott said. In this context, a rule against harassment may also forbid “disparagement.” But a rule against disparagement may be too broad and impinge on an employee’s Section 7 rights, under the GC’s memo.

“The NLRB clearly wants employers to get away from general statements about what kind of conduct” is prohibited, said Chesapeake lawyer David Sullivan.

Some employers are going to be upset by advice to modify their handbooks, according to Elliott. Their perspective is, “I’m providing the job, what do you mean I can’t keep this person from yelling obscenities at a supervisor. We get a lot of pushback about that.”

Policies “which you might have thought were utterly benign and straightforward” are now called into question, Robertson said.

What’s in, what’s out?

The apparent conflicts in some of the rules present “a bushel of thorns for the defense,” said Roanoke lawyer Tommy Strelka, who represents plaintiffs in employment cases.

For instance, a rule saying “never publish or disclose” the employer’s “or another’s confidential or other proprietary information” is out, but rules against “unauthorized disclosure” of “confidential information” or misuse or unauthorized disclosure of “confidential financial data” are in, even though both restrictions could apply to employee discussions of employee pay, according to Strelka.

Strelka also pointed to the contrasting treatment of several rules on workplace civility.

The board turned thumbs down on rules directing employees to “be respectful of others and the company,” or “respectful to the company, other employees, customers, partners and competitors.” But it sanctioned a rule saying “employees will not be discourteous or disrespectful to a customer or any member of the public” while conducting company business.

“What’s lawful and what’s unlawful are so similar,” Strelka said.

The board did not like a rule that said don’t send emails with “material that is fraudulent, harassing, embarrassing, sexually explicit, profane, obscene, intimidating, defamatory, or otherwise unlawful or inappropriate …” The employer apparently was tripped up by the effort to be thorough, and the rule foundered on “ambiguous” terms such as “embarrassing,” “defamatory” and “inappropriate.”

But “it’s okay to prohibit ‘inappropriate’ gestures,” Robertson said, as the board approved a separate rule that banned “making inappropriate gestures, including visual staring,” which the board approved.

Going forward

When reading rules that are hard to reconcile, it’s important to “step back and take it up to the 50,000-foot level. There’s a tightrope the employer has to walk,” Elliott said.

Employers want rules that stick if they are going to the Virginia Employment Commission to defend a termination. Elliott said the VEC wants to know, is there a workplace rule violation, is the rule in writing and did the employee know about the rule. The employee handbook is what most employers point to in showing communication of the rule to employees.

Many employers prefer a less-is-more handbook, and think that a short and simple set of rules is more likely to be read and observed by employees. For some subjects, though, lawyers will need to explain why more detail is necessary

With smaller companies, the better practice may be to have individual employees sign confidentiality and nondisclosure agreements, Hogge said.

Large companies are accustomed to regular review of handbooks, but smaller businesses may feel some level of security once they have a handbook in place, said Harrisonburg lawyer Lauren R. Darden. There’s an attitude of, “I’ve got a handbook, I dust it off and give it out when I hire people.” Information in the GC memo may be a wake-up call for a wide range of Virginia employers.

“What’s most important about putting together a handbook is to have policies” the employer will follow, Darden said. “It’s no good to have a 100-page handbook” that is ignored, she said.

When it comes to crafting an employee handbook, “the mistake employers make most often is the ‘Google’ mistake,” Hogge said. Their handbook consists of cut-and-paste clauses they have collected online, that express personnel policies “drawn from different employers all over the place.”

What’s right for a 50-person contracting company may not be right for a health care provider that employs 500 to 1,500 people, Hogge said.

In applying the new guidelines, context is key to the way the agency tries to “distinguish between Situation A and Situation B,” according to Sullivan.

For instance, the agency upheld a rule prohibiting disclosure of all “information acquired in the course of one’s work.” The bare rule’s broad prohibition passed muster because it was “nested” among rules relating to conflicts of interest and compliance with federal securities laws, the GC said.

In some instances, lawyers will need to research the case law behind the memo in order to draft a handbook rule, Elliott said, but “you can get down in the weeds so far your eyes will cross.” It helps to consider the NLRB’s broad perspective on protecting employee rights.

“What the NLRB does not want is for the handbook to be a chilling document,” Elliott said.

If it’s difficult to predict how the agency will come down on a given rule, lawyers on either side of the table may be able to make the lack of clarity work for them.

Where there’s ambiguity, there’s opportunity for creative lawyers to make arguments for and against a rule, according to Strelka.

Handbook Quiz

How well prepared are you to draft a new employee handbook for a client? How about a handbook for your own law firm?

Take our quiz to see which employee handbook rules have been declared “lawful” or “unlawful’ by the National Labor Relations Board. The correct answers are below.

  • No unauthorized disclosure of business secrets or other confidential information.
  • Be respectful to the company, other employees, customers, partners and competitors.
  • Chronic resistance to proper work-related orders or discipline, even though not overt insubordination, will result in discipline.
  • No rudeness or unprofessional behavior toward a customer or anyone in contact with the company.
  • Don’t pick fights online.
  • Do not make insulting, embarrassing, hurtful or abusive comments about other company employees online” and avoid “offensive, derogatory, or prejudicial comments.”
  • Do not send unwanted, offensive and inappropriate emails.
  • Making inappropriate gestures, including visual staring.
  • No use of racial slurs, derogatory comments or insults.
  • Taking unauthorized pictures or video on company property is prohibited.
  • Walking off the job is prohibited.
  • Entering or leaving company property without permission may result in discharge.

 

 

ANSWER KEY: 1. (L) 2. (U) 3. (U) 4. (L) 5. (U) 6. (U) 7. (U) 8. (L) 9. (L) 10. (U) 11. (U) 12. (L)

 

 

 

 

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