Mathew Parker of Fisher & Phillips offers advice to minimize the risk of potential handbook challenges
By Mathew Parker
Jobs, jobs and more jobs. More than one million people work in central Ohio and even more are on the way. Announcements such as Amazon's plans for a data center network in central Ohio, which is expected to create 1,000 new jobs, and the region's growing economy have us believing that job growth is here to stay. Columbus 2020 even says that the region is on track for 200,000 new jobs by 2020.
New jobs mean new workplaces to manage and that's why central Ohio employers should be aware of the National Labor Relations Board's (NLRB) general counsel's 30-page report identifying eight common handbook policies that now may fail to comply with the National Labor Relations Act (NLRA). These policies concern confidentiality, employee conduct, communication with third parties, use of the company's intellectual property, workplace photography and recording, leaving the workplace and conflicts of interest.
Significantly, the report reiterates the NLRB's stance that an employer's "mere maintenance" of a handbook policy may violate the NLRA if it "tends to chill" protected concerted activity (e.g., employees acting together to improve wages or working conditions). Mere maintenance means simply that the policy exists in an employee handbook. It does not matter whether it has rarely or ever been enforced - nor whether employees have ever interpreted it to interfere with their NLRA rights.
While the report's guidelines are vague, what is clear is that the general counsel may find your employee handbook policies unlawful if you:Confidentiality. Prohibit employees from disclosing "confidential information." Employees may discuss the terms and conditions of their employment and broad prohibitions on disclosing confidential information could be read as prohibiting such discussions. Conduct Towards Co-Workers. Restrict inappropriate comments between employees. The NLRA holds that employees may argue about the terms and conditions of their employment and general restrictions on negative speech could be interpreted as limiting such debates. Conduct Towards the Company and Management. Prohibit conduct that may harm the reputation of the company or supervisors. Employees may criticize their employer or management and broad prohibitions of such conduct could be read as interference. Even false or defamatory criticism is protected. Communications with Third Parties. Restrict employees from speaking to news media or government agencies. The NLRA says that employees may speak to non-employees about the terms and conditions of their employment and broad restrictions on such communication could be interpreted as interference. Use of Company IP. Ban the use of the company's IP. Employees may use the company's IP in connection with protected concerted activity and blanket bans on its use could be read as prohibiting its fair use by employees. Workplace Photography and Recording. Prevent employees from taking photographs or making recordings. The NLRA holds that employees may take photographs or make recordings in furtherance of protected concerted activity and general prohibitions could be interpreted as interfering with such activities during non-work time. Leaving the Workplace. Restrict employees from leaving work. Employees have the right to go on strike and a broad restriction on leaving the workplace could be read as prohibiting strikes and walk-outs. Conflicts of Interest. Prohibit employees from engaging in activities that conflict with the company's interests. The NLRA says that employees may engage in protected concerted activity, even if it conflicts with the company's interests (e.g., picketing), and a broad restriction on leaving work could be interpreted as interference.
What can employers do to minimize the risk of a future handbook challenge? For starters, they should consider:Reviewing the eight handbook policies identified in the report to determine whether they could be interpreted as "chilling" protected concerted activity - if it's ambiguous or overbroad it's most likely unlawful Putting handbook policies in context by either keeping together any policies that must be read in tandem to understand their intended meaning or providing internal references in policies to other policies that would clarify their intended meaning Explaining in the policy itself why the policy is important to the employer Using more specific language in policies or providing specific examples of the behavior targeted by them Noting that protected concerted activity is exempt from the policy
Mathew Parker is an associate in the Columbus office of Fisher & Phillips. His practice involves the representation of employers in various types of employment litigation. He also counsels employers regarding various day-to-day employment policies and practices.