By: Paul Davis on May 26th, 2016

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A Review of What You Can’t Say in an Employee Handbook

Risk Management | Best Practices | Employee Relations

Organizational leaders that I’ve worked with have always had an innate understanding of some of the basic rights of their employees. What I’ve found to be less well understood, even among some in the HR field, are additional rights that employees have which are less intuitive. A number of these un-intuitive rights are derived from the National Labor Relations Board’s (NLRB) interpretation of the National Labor Relations Act of 1935 (NLRA).

These rights are important to explore because if employers create policies that restrict the rights of their employees, they open themselves up to unnecessary liability. Some of my colleagues have already written great articles that discuss When organizations should have an employee handbook, and Common issues with employee handbooks. This article is going to focus on some of the more commonly used unlawful restrictions (based on the NLRA) that employers put in their Employee Handbooks and/or policy manuals.

Since we’re going to be focusing on aspects of the NLRA, it’s important to have an understanding of what it covers and its scope:

  • What does the NLRA cover?
    • The NLRA asserts that employees have a right to engage in protected concerted activity for purposes of collective bargaining or other mutual aid or protection. The sorts of protected activities that fall within the coverage of the Act include speech and discussions relating to the terms and conditions of an employee’s employment.
  • What is the scope of the NLRA?
    • While there are a few more nuanced exceptions, the Act generally covers employees who are not supervisors.
      • An interesting implication of supervisors not being covered by the Act is that employers are able to have a separate set of policies just for supervisors at their organization that are more restrictive than their other policies that apply to non-supervisors. This is generally not something that I advise doing, due to the administrative burden of maintaining and managing two separate sets of policies. With that said, the flexibility does exist for employers to go that route, and specific organizations may have compelling reasons to have a separate set of policies just for their managers.

A Review of What You Can’t Say in an Employee HandbookHow do I use this knowledge to create policies that are lawful?

It helps to start with a broad understanding of how the NLRB interprets the NLRA, and then to drill down to more specific examples. Once you understand the philosophy of the NLRB, the restrictions listed below start to make a lot more sense within that context, and you’ll be able to apply that philosophy as your organization encounters new and unique situations. For the purposes of this article, the simplest way to view the NLRB’s position is that it believes that employees should be able to freely and without the direct or implied threat of retaliation, communicate about the terms and conditions of their employment. This protected communication can occur with other colleagues, non-colleagues, the media, government investigators, and even just generally on social media platforms. As a result, organizations cannot broadly restrict employees from communicating things that reflect poorly on their employer. This sort of broad restriction might have a chilling effect on communicating about protected topics themselves, and/or place restrictions on the audience for those communications. Put another way, organizations must narrowly target restrictions regarding employee behavior and communication if they want their policies to hold up as lawful. These narrowly targeted restrictions cannot be perceived to have a chilling effect on employees’ rights.

Some examples of restrictions that are unlawful in the eyes of the NLRB are:

  • Policies that broadly ban negativity, negative comments about their employer, or gossip;
    • An employee may make negative comments, or gossip about the terms and conditions of their employment. The terms and conditions of employment may be objectively bad, or be just perceived to be so; it doesn’t matter.
  • Requirements for employees to conduct themselves professionally;
    • This sort of requirement is vague, and should be clarified so that it’s clear that the potential interpretation of what ‘professional’ means does not interfere with employees’ rights. An employee may perceive that their employer believes that ‘acting professional’ includes not saying anything disparaging about their employer, which would then have a chilling effect on that employee discussing the terms and conditions of their employment.
  • Requiring employees to consult with the company before participating in a government investigation;
  • You can require that employees perform their job during working time, but not work hours (which can include breaks when employees can engage in protected activity);
  • Employers can’t outlaw false statements, but they can restrict maliciously false statements
    • Employees might not know the entire story, and if you require that everything that they say be 100% true, it may require that they have access to information from which they are restricted from accessing. It would then have the effect of an employer to effectively choose which communications from employees will result in discipline, since employees would never know when they had all of the information pertaining to a protected topic of communication. This result is clearly at odds with the spirit of the NLRA.
  • Overly broad restrictions requiring confidentiality;
    • Your policies can target confidentiality in circumstances in which your organization could reasonably believe that such confidentiality is required for employee safety or safeguarding of propriety information. If you require confidentiality and haven’t demonstrated a valid reason (in the eyes of the NLRB (which is not the same as being a valid business reason)), you may be restricting your employees’ ability to exercise their rights.
  • Non-solicitation and non-distribution policies;
    • This brings up a whole different topic regarding how to address employees who are discussing organizing (i.e. forming a union). I recommend that you connect with a union relations specialist to discuss your organization’s strategy in regards to unions.

The summary that’s been provided about the NLRB’s stance, and above list of restricted restrictions, aren’t full guides as to how to create lawful policies. What this hopefully does though, is provide you with enough information so that when you see a policy that might be unlawful, you’ll at least know enough to ask the right questions. That being said, please keep in mind, this article is not intended to be legal advice.