The National Labor Relations Board is recommending that business owners review their employee handbooks before it lands them in trouble—a strong possibility given what the board’s attorney reads as “facially unlawful” language. A restaurateur could be violating union-protection laws with such directives as “Be respectful to others,” and “Do not send unwanted, offensive, or inappropriate e-mails.”
Those are two actual handbook examples cited by NLRB General Counsel Richard Griffin as unlawful language. As he explained in a memo issued to NLRB officials and the public in March, well-intentioned language could be interpreted by employees as limitations of their rights to lay the groundwork for organizing.
For instance, prohibitions against insubordination could be taken to mean staffers cannot criticize their employers, a possible first step in unionizing. Bans on leaking company secrets could discourage workers from bringing unacceptable work conditions to the attention of the media and building support for unionization. Social-media policies could similarly inhibit public disclosure of gripes and injustices.
Here are employee-handbook excerpts on which Griffin is calling foul, along with his reasons for that judgment and what would be a lawful statement of the policy.
| Unlawful | Reason | Lawful |
|---|---|---|
| Do not discuss customer or employee information outside of work, including phone numbers and addresses. | It restricts disclosure of employee information and thus is unlawfully overbroad. | No unauthorized disclosure of business ‘secrets’ or other confidential information. |
| Be respectful to the company, other employees, customers, partners and competitors. | Staff may think it bans protected criticism or protests of managers or the employer. | No harassment of employees, patients or facility visitors. |
| Do not send unwanted, offensive or inappropriate emails. | Language is vague and overbroad. | No use of racial slurs, derogatory comments or insults. |
| Refrain from any action that would harm persons or property or cause damage to the company’s business or reputation. | It may be read to require employees to refrain from criticizing the employer in public. | (No replacement provided.) |
| No disrespectful conduct or insubordination, including, but not limited to, refusing to follow orders from a supervisor or a designated representative. | Employees’ right to criticize an employer’s labor policies and treatment of employees includes the right to do so in a public forum. | Each employee is expected to work in a cooperative manner with management/supervisors, co-workers, customers and vendors. |
| Failure to report for more than three consecutive days without prior authorization or walking off the job is prohibited. | It broadly bans walking off the job, which could include protected strikes and walkouts. | Entering or leaving company property without permission may result in discharge. |
| Employees are not authorized to speak to any representatives of the print and/or electronic media about company matters unless designated to do so by HR and must refer all inquiries to the company’s media hotline. | Unlawfully overbroad because employees reasonably would read them to ban protected communications with the media. | To reduce employee disruption and maintain our reputation, the company will respond to the media in a timely and professional manner only through a designated spokespersons. |
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