NLRB Handbook Do’s and Don’ts

    To assist employers in drafting and crafting handbooks that do not violate the National Labor Relations Act, the National Labor Relations Board issued a compilation of common work rules it has determined to be violative of the Act. The main area of concern for the Board is that employees be allowed to participate in “concerted activity” to help improve their terms and conditions of employment. It is on the lookout for rules that 1) explicitly restrict protected concerted activity, and/or 2) could be construed to restrict such activity (Section 7 of the Act). Obviously, what an employer trying to make a profit and regulate the workforce thinks is “fair” and what the Board considers “illegal” is the trickbag companies find themselves in.

    In terms of maintaining “confidentiality” of business information, an employer can issue a rule that says “No unauthorized disclosure of ‘business secrets’ or other confidential information” because it 1) “does not reference information regarding employees or employee terms or conditions of employment, 2) the term ‘confidential’ is not used in an over broad manner and 3) it does not contain language that would reasonably be construed to prohibit Section 7 communications.” Clear as mud?

    Rules regarding conduct towards the company and supervisors i.e. “be respectful, do not defame” are “overly broad” because “employees reasonably would construe them to ban protected criticism or protests regarding their supervisors, management, or the employer in general.”

    Rules that discourage employees from harming the company’s reputation also tend to be overly broad because they could be read to require employees to refrain from criticizing the employer in public. However, a rule prohibiting rudeness or unprofessional conduct towards a customer or member of the public while in the course of company business is permissible.

    Hairsplitting? Not to the NLRB General Counsel who pushes the envelope in labor law. While he is General Counsel, you are advised to take another look at your rules to see if they can be perceived to have a chilling effect on your workers’ rights.