NLRB Launches New Comprehensive Attack Against Employee Handbook Provisions

In previous posts, such as “NLRB says ‘No Workplace Secrets Allowed!’” I noted that in recent years, the National Labor Relations Board (“NLRB”) has taken an aggressive “bigfoot” approach against many commonly utilized employee handbook policies.  The NLRB’s justification for filing complaints against employers was that overbroad language in employee handbooks purportedly violated the National Labor Relations Act (“NLRA”).  

The first notable example was when the NLRB used the same rationale to find many employers’ social media policies to be in violation of the NLRA.  Another lesson employers learned from the NLRB’s assault on workplace social media policies is that an employer can be found in violation on the basis of an overbroad policy alone, even if there is no action taken against an employee for violation of the policy.  As many employers also learned from the NLRB’s social media focus, even non-union employers can be found in violation of the NLRA. 

Earlier this month, the NLRB issued a 30-page report intended to offer guidance to employers in drafting handbook provisions that will withstand the NLRB’s scrutiny.  The NLRB states the report is intended to address what it describes as “an evolving area of labor law.” This includes routine and longstanding employment policies that the NLRB believes have a chilling effect on employees’ concerted activities protected by Section 7 of the NLRA.

What types of handbook policies have drawn the NLRB’s ire? Examples include employer confidentiality provisions that forbid employee disclosure of “employee information” or “ another’s confidential or other proprietary information.”  The NLRB believes such policies are overbroad when they are not narrowly tailored to protect trade secrets or proprietary information as opposed to violating Section 7 by forbidding discussion of wages or other terms and conditions of employment among employees.  The NLRB report also considers policies that call for employees to be respectful of others in the company or to avoid derogatory comments to also be overbroad and possibly constitute a violation of Section 7. The NLRB report stresses that violations will be found for “even well-intentioned rules”, even when there is no intent to violate Section 7. 

The NLRB’s release of the comprehensive report can reasonably be seen as a warning of another round of aggressive action by the NLRB against employers, similar to what was seen when the Board began going after employers for their social media policies.  This should not be a surprise from an exceedingly political Board, which has actively advanced the administration’s extreme pro-union positions. 

In light of the NLRB report, employers would be well advised to promptly conduct a comprehensive review of all handbook policies to revise any potentially overbroad language, so as to avoid showing up on the NLRB’s radar.  

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLC, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com

NLRB Says “No Workplace Secrets Allowed!”

The National Labor Relations Board (“NLRB”) has held that an employer’s enforcement of a commonly used workplace policy could expose the employer to liability under the National Labor Relations Act (“NLRA” or “the Act”).

This particular matter involved the technology company MCPc, which had a confidentially provision in its employee handbook which read. In part, as follows:

[D]issemination of confidential information within [the company], such as personal or financial information, etc., will subject the responsible employee to disciplinary action or possible termination . . . .

This type of policy, in one form or another, is commonly utilized by many employers.  In the case of MCPc, the company fired an employer after he announced at a meeting that the salary paid to a particular executive, stating the specific amount of the executive’s compensation, would have been used to hire additional engineers.  In terminating the employee for his statements, MCPc also based the decision on the employee improperly accessing computer files to discover the executive’s salary.

Last month, the NLRB upheld an administrative law judge’s decision, finding that MCPc’s internal confidentiality policy was overbroad and violated The NLRB held that this language violated Section 8(a)(1) of the NLRA because employees would reasonably construe the overbroad rule to prohibit discussion of wages or other terms and conditions of employment with their coworkers.  In upholding the ruling against MCPc for the termination of the employee, the NLRB agreed that the employee’s discussion was protected discussion because it involved the terms and conditions of his employment, i.e. staffing shortages.

In recent years, the NLRB has used the same rationale to find many employers’ social media policies to be in violation of the Act.  Another lesson to remember from the NLRB’s assault on workplace social media policies is that an employer can be found in violation on the basis of an overbroad policy alone, even if there is no action taken against an employee for violation of the policy.  As many employers also learned from the NLRB’s social media focus, even non-union employers can be found in violation of the NLRA.

Where does this leave employers?  As mentioned above, many employers have similar policies in their employee handbooks.  This is often for the purpose of avoiding the inevitable bickering and complaints that arise when employees start comparing their respective salaries, and are aggrieved over their perception of being underpaid, or another employee being overpaid.  Unfortunately, that goal is exactly what the NLRB views as a violation.

From the perspective of the NLRB’s “bigfoot” approach in the area of social media policies, I think employers are ultimately going to have to scrap the broadly worded confidentiality policies, and opt instead for narrowly tailored policies that protect against the disclosure of trade secrets and other confidential or proprietary information.

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLC, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com