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Policy Confusion

  • Author: Kathy Barany

    Grab a cup of coffee....this is a long one...

    According to the National Labor Relations Board (NLRB) it is unlawful for an employer to have a rule that requires employees to be “respectful to the company”.  I am not kidding…honestly, that is what they have said.  They said that, and a plethora of other things, as part of a 30-page memorandum issued by the NLRB’s General Counsel. 

    In all my years in HR I have never been so confused; I don’t get some of the (slight) differences between what they find lawful and unlawful.

    For example, if your policy says “Be respectful to the company, other employees, customers, partners and competitors,” the NLRB says it is unlawful because employees would reasonably interpret it that you were trying to ban their right to criticize their supervisors, managers or the employer in general.

    However, the NLRB says that a rule prohibiting “rudeness, unprofessional behavior towards a customer or anyone in contact with the company” is lawful because it does not include the company or management.  Really?  Yes, really; that is what the NLRB says. And the employee won’t interpret “anyone in contact with the company” as restricting them?  Think again NLRB.

    A few other statements the NLRB says are unlawful are:

    • Do not discuss customer or employee information outside of work, including phone numbers and addresses.
    • Never engage in behavior that would undermine the reputation of XYZ Company your peers or yourself.
    • Do not make insulting, embarrassing, hurtful or abusive comments about other company employees online, and avoid the use of offensive, derogatory, or prejudicial comments.

    That last bullet?  Guess what…the EEOC allows us to use statements similar to that in our harassment policies.  Clearly the NLRB and EEOC are not on the same wavelength.  There are other entities (NYS Human Rights for one), that also allow statements the NLRB prohibits.  Confused yet?  I am. 

    Remember…there are 30 pages of this stuff in the memorandum/report.  If you want a (complimentary) copy of the report, let me know and I will send it to you. 

    In the report, the NLRB also “picks on” social media policies and others that they have found “illegal” statements in.  They do say that when they rule on legal versus illegal that they take into consideration the context in which the statement was used.  So what might be lawful in one context is unlawful in another. 

    In taking an educated guess, I would surmise that many of the handbooks I have authored have some illegal statements in them.  Illegal according to the NLRB.  Not illegal, and quite reasonable actually, according to other entities.  Clearly the NLRB and other entities, including me, have a different definition of “reasonable”. 

    The wage and hour divisions of both the federal and state departments of labor, conduct audits; they conduct random audits as well as audits due to receiving a complaint.   The NLRB does not do audits.   So how is it discovered that you have an unlawful statement in your handbook?  It happens if an employee complains to the NLRB.  Once they do, that is when the NLRB steps in and looks at your policies and practices. 

    What might happen if it is found you are unlawful?  The NLRB might direct you to change your policy.  They might also require you to reinstate certain terms and conditions of employment, and in some cases post notices acknowledging your infractions. 

    Many employers think that the NLRB doesn’t govern them.  Most employers associate the NLRB with unions.  The NLRB enforces the National Labor Relations Act (NLRA).  Section 7 of the NLRA (which applies to all private employers) says that an employee has a right to concerted activity.  Concerted activity means they can discuss and act with other co-workers to improve their working conditions; including pay and issues they have with management.  (In other words, it gives them the right to complain.)   They can even do this complaining on company time on the company email system. 

    Even if the wording of an employer’s rule isn’t clearly unlawful, the NLRB says it is unlawful if (1) employees would reasonably interpret the language used to prohibit the employee from protecting their rights under Section 7; or (2) the rule was publicized in response to union or other protected Section 7 activity; or (3) the rule was put in place as an attempt to restrict the employees application of Section 7 rights.  Clear as mud, right?  I won’t even attempt to explain Section 8 of the NLRA. 

    I see employers as having two options.  The first option is to leave your handbook policies as is.  If you do, keep in mind that we are now all up in arms about this subject because of the NLRB.  Could that change with the next presidential election?  In my personal opinion I think it could. 

    Your second option is to have your policies reviewed and potentially revised.  If you choose the 2nd option, and you chose to have me work with you on it, I recommend that you have an employment law attorney review the final product.  I have even had attorneys say how gray an area this is, so two heads would definitely be better than one in this case. 

    Please understand that the above explanation only tells part of the story.  I tried to be succinct; succinctness is not possible on this topic.   

    (1)           Government employees (including state and local) are not covered by the NLRA. There are a few other exceptions.  Most of those exceptions are based on gross annual business income.

    Do-it-yourself HR professionals beware; it’s not so easy.  Perhaps you have been to a seminar so now you (think) you know what to do.  One seminar won't cut it; neither will the common sense you might have.  Even this (me) experienced HR professional is struggling with this one.  I have spent countless hours attending seminars and webinars; talking to attorneys and fellow HR professionals, and we all remain confused.

    If you have read this far, thank you.  Let me end by saying that most of the rules haven’t changed; the interpretation and application of those rules have.