It is a best practice for employers to update their employee handbooks periodically to ensure they are both legally compliant and reflective of current company practices. The importance of this effort is underscored by a recent NLRB administrative law judge's decision in BCG Partners Inc. d/b/a Newmark Grubb Knight Frank v. Thurman. The Thurman decision found numerous handbook policies to be in violation of the National Labor Relations Act (NLRA), which restricts employers from enacting handbook policies that would reasonably tend to chill employees in the exercise of their rights under Section 7 of the Act.
Section 7 gives employees the right to organize, bargain and engage in concerted activities for mutual aid or protection. A company rule may be found unlawful if (1) it expressly restricts section 7 activity; (2) employees would reasonably construe the language as prohibiting Section 7 activity; (3) the rule was promulgated in response to union activity; or (4) it has been applied to restrict Section 7 rights.
In BCG Partners Inc. d/b/a Newmark Grubb Knight Frank v. Thurman, numerous policies in Respondent Newmark Grubb's handbook were found to violate the NLRA. These include:
- A "Responsive Action" policy, which subjected workers to discipline or discharge even where they non-maliciously provide false information during investigations.
- A "Conflicts of Interest" policy, which banned conflicts of interest and had an ongoing disclosure requirement.
- An "Outside Employment and Business Activities" policy, which banned employees from outside work that could present a conflict of interest.
- A "Reference Inquiries and Requests for Employee Information" policy, which banned the provision of employee information to any outside entity without prior authorization.
- A "Confidentiality" policy, which is overbroad and subjected workers to discipline or discharge.
- A "Company Property" policy, which banned the use of email during non-working time and for non-business purposes, as well as disallowing other protected activity from company facilities.
- A "Telecommunications Usage" policy that prohibited employees from using phone and company communication devices during non-working time and for non-business purposes.
- A "Use of Company Information Technology" policy that prohibited employees from using email and other technology during non-working time for non-business purposes.
- A "Tape Recording" policy that prohibited unauthorized workplace recordings.
- A "Respectful Workplace" policy that prohibited negative comments about supervision that are deemed disrespectful.
- A "Social Media" policy that required company consent before employees post anything concerning the company on social media.
- An "Outside Speaking and Writing Activities" policy that required employees to obtain prior approval before writing or speaking publicly.
- A "Press Inquiries and Other Information Requests" policy that prohibited employees from talking to the press, media, or government without prior approval.
- A "Cooperation in Investigations and Litigation" policy that required employees to cooperate in all workplace investigations, including those related to unfair labor practice charges.
- A "Solicitation, Distribution of Literature & Political Advocacy" policy that banned all solicitations, including those in nonwork areas during nonworking time.
- A "Personal Appearance" policy that prohibits clothing with printed slogans or promotions.
- A "Standards of Conduct" policy with multiple provisions that violated Section 7. These included rules that (a) ban all conflicts of interest; (b) bar negative commentary on supervision considered to be disrespectful or disruptive; (c) prohibit disclosure of employee and company information without prior approval; (d) prohibit employees from engaging in actions that could be construed as harming company operations or reputation; and (e) prohibit employees from stopping work prior to the end of a shift or not returning to work.
Because of these violations, the administrative law judge issued an order directing the employer to cease and desist from maintaining the improper policies or otherwise restraining employees from exercising their Section 7 rights. The order also required that existing policies be updated to conform with the NLRA, and that the employer issue updated handbooks to all workers. The employer must also post a notice summarizing the foregoing requirements in the workplace for sixty days.
To avoid the headache and expense of a similar agency review of your organization's handbook, consider adding a handbook review to your HR goals for 2017!