Walking the Fine Line of Creating an Employee Handbook

Employers walk a fine line in creating employee handbooks that both protect the employer's legitimate business interests while also not infringing on an employee's rights. A frequent challenge to employee handbooks is the argument that policies infringe on an employee's Section 7 rights under the National Labor Relations Act (NLRA). Section 7 of the NLRA guarantees employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."

You may be thinking, but I do not have unionized employees, why do I care? Section 7 of the NLRA is a federal law that provides protection to all employees, whether unionized or not.

The question of whether specific policies, even those that are facially neutral, violate Section 7 is the subject of much debate. Unfortunately, employers were largely left out in the cold in attempting to determine whether a specific policy could be "reasonably construed" as violating Section 7 rights.

That was until the National Labor Relations Board's(NLRB) decision in The Boeing Co, 365 NLRB No. 154 (2017), and the subsequent June 6, 2018 memorandum issued by the General Counsel of the NLRB, Peter Robb, that outlined the NLRB's shift in interpreting employee handbook policies.

The Boeing decision overruled a previous decision, in which the Board found that employers violated the NLRA by maintaining workplace rules that would be "reasonably construed" by an employee to prohibit the exercise of NLRA rights. Now, the NLRB will instead evaluate not whether the policy "could" cover section 7 activity, but rather whether it "would" cover this activity. The NLRB will use a two part test: (1) the nature and extent of the potential impact on NLRA rights, and (2) whether legitimate justifications associated with the rule.

Boeing, and the June 6, 2018 memo, outlined three categories of policies to provide greater clarity and certainty to employers, employees, and unions in drafting employment policies:

  • Category 1 - includes rules that the NLRB has designated as lawful (even if the neutral law could arguably interfere with Section 7 rights). Policy examples include: civility/rules of conduct, no-photography/no-recording, insubordination, disruptive behavior, confidential/proprietary information, misrepresentation/defamation, and a few others.
  • Category 2 - includes rules that warrant individualized scrutiny- they are neither obviously lawful nor unlawful and must be evaluated on a case by case basis. In this category one must look whether the rule would prohibit/interfere with NLRA rights and, if so, whether any adverse impact on NLRA protected conduct is outweighed by legitimate justifications.
  • Category 3 - includes that the board designates as unlawful. Policy examples include confidentiality rules regarding wages, benefits, or working conditions and rules against joining outside organizations or voting on matters concerning employer.

The Boeing decision and subsequent memorandum provide much needed clarity to employers when creating and revising employee handbooks.

Notwithstanding this shift, because of the nuances of policies and business needs, it is important to consult with an experienced labor and employment attorney to ensure that your policies are compliant with state, federal, and local law.


QUESTIONS ABOUT THIS TOPIC?

If you have any questions about the content of this article or are looking for assistance in drafting or revising your employee manual, please contact Labor & Employment attorney Lida Bannink at 651-351-2116, or email at lbannink@eckberglammers.com.