When reviewing employee handbooks one of the tougher feedback discussions is about how a policy is written and having to explain why on its face it is a fairly esoteric policy, but it is too broadly written and may be a violation of federal labor law.

For example, in the instance of a Confidentiality Policy, from the employer’s standpoint a Confidentiality Policy statement may be written broadly on purpose so as not to miss communicating about restricted business information that might negatively impact the employer. Better to cover everything that an employer does not want employees to share with outside parties than miss something important that might be mistakenly left out and in turn leaves the employer without recourse for addressing an employee’s imprudent breaches of confidentiality.

Other policies the NLRB typically have challenged as too broadly written have been Social Media, No Recording or Videotaping, Employee Civility and Conduct rules, Conflict of Interest, and Dress Codes policies to name just a few. ASE has written on the NLRB challenges to these rules in the past.

When an employer is found to have written a rule too broadly, in the past, the NLRB has simply demanded the employer rescind the offending rule and give notice to employees of that fact. However, last week NLRB General Counsel Jennifer Abruzzo announced she is urging the NLRB to expand its remedies to further penalize employers use of over broadly written work policy/rules. In addition to the past remedies the NLRB General Counsel is asking the NLRB to rescind any employee discipline or other actions against the employee(s) who violated that policy/rule. Further the General Counsel’s new damages proposal would have additional workers who might have been disciplined under the policy or rule also be included in a corrective remedy that would see reinstatement of employment along with back pay and other make whole remedies.

The NLRB General Counsel believes it is also necessary to walk back discipline in order to “put employee’s back in the position they would have been without the unlawful rules.”

This is not for some punitive policy or rule. This employer punishment would be for unintentionally broad policies that just may be interpreted by some employee as impinging on their right to engage in protected concerted activity and could be applicable when the employee is engaged in communications or activity that is in fact a breach of the policy or rule as it was intended to be applied.

What is recommended when drafting policy or rules is to base it on the legitimate business reason(s) for the policy/rule. This is easier said than done given the NLRB bases its determination of an overbroad policy on a pretty subjective rationale. An NLRB case called Stericycle handed down last summer redefined how an employer policy or rule should be looked at for this purpose. Stericycle held employer policies or rules should be narrowly tailored so that the policy would not have a ‘reasonable tendency’ to dissuade workers from engaging in organizing activity…” This leaves it to the biases of a labor organizer or a pro-labor agency (the current NLRB) to determine whether a rule was narrow enough. The employer then has to defend itself by showing that a more important business purpose compelled the policy or rule to be written as such. It’s a tough standard to meet.

Add to the tough interpretive standard the fact an employer commits an unfair labor practice labor law violation by virtue of this broadly written rule and another controversial NLRB decision called  CEMEX  that gives the NLRB the authority to bypass an organizing vote in an election where the employer is found to have engaged in unfair labor practices, and employers and arguably their workers are put at a distinct disadvantage when fighting an organizing drive.

So, what can an employer do? First review their handbook policies, particularly the ones noted above. Those policies are currently being found by the NLRB as too broadly written. Next seek to identify why the policy as written ties to a legitimate business issue or reason. This will be tough because there will be overlap of purpose. The policy or rule will on one hand be read as business driven but also can possibly be read to prohibit certain actions that would be considered allowed under the law in the context of collective concerted activity.

If the employer is susceptible to organizing and there is a  risk of an employer being charged by the NLRB, one approach to weeding out rules that could be used against the employer is to take them out of the handbook and pursue alleged breaches one at a time. This would keep a policy/rule that could easily be determined a breach of labor law out of publication (handbook) but would allow the employer to pursue alleged infractions by way of an investigation and determination on whether the breach was a policy violation or could involve protected concerted activity under the NLRA.

ASE Connect

ASE’s employee handbook review services provide employers extensive feedback on potential policy compliance problems so an employer can edit their policies accordingly. We also have a class on reviewing and developing handbooks and our Members Only libraries have extensive information on labor law and handbook policy development. For more information on ASE’s handbook services contact Michael Burns.

Source: Law 360 Employment Authority. GC Urges NLRB to Grow Remedies For Work Rule Violations, (3/1902024)