Businesses across the country are flipping through their employee handbooks trying to determine what has to be changed to comply new federal rules.
It is not an easy task, company lawyers say, because the new rules are often vague and confusing.
In many cases, it is difficult to know what is the difference between language the government now says is prohibited and what is acceptable. For example, the new federal rules say that a company policy to “avoid the use of offensive, derogatory, or prejudicial comments” is unlawful, while a rule prohibiting “use of racial slurs, derogatory comments, or insults” is acceptable.
“To me, many of the examples the board gives beg the question, ‘Well, what is wrong with that and what is right with this?’ If they were trying to provide a practical guide to employers, it seems to me that they failed in that regard,” said Howard Kurman, a Baltimore management-side lawyer.
The rules were included in a March 18 memorandum from the National Labor Relations Board’s general counsel to the agency’s regional directors. The board enforces federal labor laws.
The memo concerns protecting workers’ “Section 7” rights — the right to take part in union-related activity — and addresses rules in company employee handbooks that may infringe on this right. The memo says in effect that any company rule that an employee could in any way interpret as limiting their ability to engage in union and union-related activities is no longer permissible.
Thus, a rule stating that employees are not “authorized to speak to any representatives of the print and/or electronic media about company matters” without company approval is prohibited because workers could “reasonably construe the phrase ‘company matters’ to encompass employment concerns and labor relations.”
Any company rule requiring employees to “respect copyrights and similar laws” is out because “employees would reasonably construe that language to prohibit Section 7 communications involving, for example, reference to the copyrighted handbook or company website for purposes of commentary or criticism.”
In another example, the memo cites a case involving a company rule prohibiting “false or misleading representations about your credentials or your work.” It says that rule was found to be illegal because the language “clearly encompassed communications relating to working conditions, which do not lose their protection if they are false or misleading.” False communication can only be prohibited if it’s made with a “reckless disregard for the truth.”
The burden is squarely on employers, noted Alejandro Valle, an Indianapolis lawyer in an April commentary for the National Law Journal. “Policies will be considered unlawful by the NLRB when they would be reasonably construed by employees as restricting Section 7 activity, even if the policies are not designed or intended to have that effect.”
The memo caught many companies off-guard and not just because of of its confusing nature. The labor board has traditionally busied itself with enforcement of workplace labor complaints. It is rare for it to insert itself in the operations of non-unionized businesses where workers are not trying to organize.
No one contacted by the Washington Examiner disputed that the board had the authority to make the changes under the National Labor Relations Act, which protects employee rights broadly, not just those involving unions. Nevertheless, it just wasn’t something the board had done much of previously.
Steven Bernstein, a Tampa, Florida-based management-side lawyer, said the board began moving toward such regulatory action a few years ago when companies began grappling with how to address employee use of social media like Facebook. The labor board has used cases involving these new company policies to expand its own reach under an existing, if little-used, power.
“The NLRB is breathing new life into an old doctrine that has been around as long as they have called for ‘concerted protected activity,'” Bernstein said. This concept essentially prohibits employers from limiting employees from speaking out on behalf of their co-workers. The board has interpreted this authority broadly and that lead to its interest in employee handbooks, which codify the company rules.
“Employers are being forced to revisit their handbooks and scrutinize policies that years ago never would have raised a question,” he said. “In some cases, my clients are being forced to revisit from soup to nuts a handbook that would have been permissible just three years ago.”
