9 Ways the NLRB Is Making It Easier to Revise Your Handbook

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Jun 25, 2018

If you’re new to the field, you’ll have to take our word on it, but HR-compliance professionals know that drafting a 100% compliant employee handbook got a lot tougher over the past several years.

Let’s forget about paid-sick-leave laws, ban-the-box, and other state/local law matters. I’m just talking about how strict the National Labor Relations Board had become in interpreting employee handbook policies for union and non-union employers. (Remember that the National Labor Relations Act is not limited to unionized employers.)

Fortunately, relief is on the way. And I have nine ways in which you can now update your handbook with the blessing of the Board’s General Counsel.

A few weeks ago, the General Counsel issued a memorandum. In that memo, he listed a bunch of rules that might not have survived board scrutiny in the past. But, that’s about to change.

Going forward, if you get called out for having any of these nine types of rules in your handbook, the General Counsel has your back:

1. Civility rules — Rules that prohibit disparaging the company, rude behavior or other un-businesslike behavior are OK.

2. No-photography rules and no-recording rules — If you want to have a rule that bans employees from taking photos, videos, or recorded conversations at work, you can.

3. Rules against insubordination, non-cooperation, or on-the-job conduct that adversely affects operations — Your handbook may prohibit insubordination, unlawful or improper conduct, uncooperative behavior, refusal to comply with orders or perform work, or other on-the-job conduct that adversely affects the employer’s operation.

4. Disruptive behavior rules — Your handbook may prohibit disorderly conduct or other bad behavior that disrupts business operations.

5. Rules protecting confidential, proprietary, and customer information or documents — If you want confidential information to remain confidential, by all means. Note: This would not extend to the discussion of employee or wage information.

6. Rules against defamation or misrepresentation — This speaks for itself.

7. Rules against using employer logos or intellectual property — Rules like “Employees are forbidden from using the company’s logos for any reason.” or “Do not use any company logo, trademark, or graphic without prior written approval” are ok.

8. Rules requiring authorization to speak for company You may have a handbook rule requiring authorization to speak for the company or requiring that only certain persons speak for the company.

9. Rules banning disloyalty, nepotism, or self-enrichment — Yes, you may have rules banning these types of conflicts of interest.

Not only has the General Counsel blessed these types of rules but if it’s a close call, like in baseball, the tie goes to the runner. The employer is the runner.

Now, don’t get too far ahead of your skis. The General Counsel did place a few limitations on these types of rules:

“Rules that specifically ban protected concerted activity, or that are promulgated directly in response to organizing or other protected concerted activity, remain unlawful. Moreover, the Board held that the application of a facially neutral rule against employees engaged in protected concerted activity is still unlawful. A neutral handbook rule does not render protected activity unprotected.”

So, you may want to call your company’s lawyer before you finalize any handbook update or enforce any new rules. But, the Board’s General Counsel has laid out the groundwork to get you started.

This article originally appeared on The Employer Handbook blog.