Review Your Employee Handbook

If you are an employer confused about the federal government’s position on handbook provisions requiring civility and professional behavior by employees in internet and social media posts, you are not alone. Common sense suggests business-like behavior should be encouraged.

But the National Labor Relations Board has not always agreed.

Under the Obama administration, the EEOC appeared to bend over backward to interpret personnel handbook provisions as limiting the ability of employees to engage in concerted activity protected under the National Labor Relations Act. This often led to results that business people considered absurd. For example, the Board ruled unlawful attempts to prohibit outrageous employee conduct such as scandalous posts and vile names against superiors, ruling that attempts to rein in such behavior violated the rights of employees to potentially discuss working conditions under the NLRA.

In December 2017, the Board issued a decision that reassessed the standard for determining whether work rules violate the NLRA. The Board established a new standard that focused on the balance between a rule’s negative impact on employees’ ability to exercise rights under the NLRA and the employers’ right to maintain discipline and productivity in the workplace.

Based on this ruling, the general counsel of the EEOC issued a memorandum to regional offices containing directions on specific types of workplace rules and whether enforcement action finding them unlawful is appropriate. The memorandum broke the rules down into three broad categories: Category 1 – rules generally lawful; Category 2 – rules warranting individual scrutiny by the Commission; and Category 3 – rules unlawful to maintain. The memorandum gave specific examples. When considering your handbook, give attention to this memorandum that gives helpful guidelines as to what may be permitted and not permitted.

Category 1 - Rules generally lawful to maintain.

The memorandum provided specific types of rules and examples where permitted:

• Civility rules;
• No photography rules and no recording rules;
• Rules against insubordination, non-cooperation, or on the job conduct that hurts operations;
• Disruptive behavior rules;
• Rules protecting confidentiality, propriety, and customer information on documents;
• Rules against defamation or misrepresentation;
• Rules against using employer logos or intellectual property;
• Rules requiring authorization to speak for the company; and
• Rules banning disloyalty, nepotism, or self-enrichment.

Category 2 – Rules requiring individual scrutiny.

These are not obviously unlawful or lawful and require evaluation by the EEOC case by case. During its evaluation the NLRB should consider whether the rule interferes with the rights guaranteed an employee under the National Labor Relations Act, and if so, whether the adverse impact on exercising the rights is outweighed by a legitimate business justification. Some examples of Category 2 rules are:

• Broad conflict of interest rules that do not specifically target fraud and self-enrichment;
• Confidentiality rules broadly encompassing employer business or employee information as opposed to confidentiality rules regarding customer or proprietary information;
• Rules regarding disparagement or criticism of the employer (as opposed to civility rules regarding disparagement of employees);
• Rules regulating use of the employer’s name as opposed to rules regulating use of employer logos or intellectual property;
• Rules generally restricting speaking to the media or third parties, as opposed to rules restricting speaking to the media on the employer’s behalf;
• Rules banning off duty conduct that might harm the employer, as opposed to rules banning insubordinate or disruptive conduct; and
• Rules against making false or inaccurate statements as opposed to rules against making defamatory statements.

Category 3 – Rules unlawful to maintain

These are rules that are facially unlawful because they prohibit or limit activities protected under the National Labor Relations Act for employees to engage in concerted action. These are:

• Prohibitions from disclosing salaries or contents of employment contracts;
• Prohibitions on employees disclosing information pertaining to wages, commissions, performance, or identity of employees of the employer;
• Prohibitions from disclosing to any media source information regarding employment or working conditions; and
• Rules against joining outside organizations or voting on matters about the employer.

While this memorandum was simply guidance to NLRB employees, the actions of the NLRB during the Obama administration in charging employers with unfair labor practices because of handbook provisions employers considered to be reasonable created what employers felt was an atmosphere encouraging business disruption. The common sense guidelines issued by the general counsel of the NLRB should be helpful in determining the handbook provisions on which the company relies.