Changing Times Means Revising Employee Handbooks

September 4, 2019

While employee handbooks are not required, creating, maintaining and regularly updating a company handbook is a best practice to follow. An employee handbook lays out basic information to employees about company polities and the employment relationship. But creating and implementing your handbook is insufficient – it is a living and breathing document that must be updated regularly (ideally annually) to ensure compliance with evolving federal, state and local laws as well as fast-moving changes to technology.

A properly drafted employee handbook is a valuable communication tool to help employers avoid legal problems and relay expectations, especially with the proliferation of technology use both in and outside of the workplace. From smart phones to tablets, employees regularly conduct both personal and professional business using various devices. Clear and concise employer-issued policies, such as those that govern social media use, computer use, data security, and bring your own device (BYOD), help set the expectations for both the employees and employers on what behavior is appropriate and can help protect employers from liability if an issue arises.

This past June the General Counsel of the National Labor Relations Board (the “NLRB”) issued a memorandum that, while not binding, provides helpful insight to employers reviewing their handbooks under the National Labor Relations Act (the “NLRA”). By way of background, the NLRA applies to both union and non-unionized workforces and generally protects an employee’s right to discuss wages, hours, and other terms and conditions of employment, known as Section 7 rights. Based on NLRB case law, employers may not maintain any work rule if the rule has a “chilling effect” on such rights. The NLRB will find such a chilling effect if employees would “reasonably construe” the rule’s language to prohibit their Section 7 rights under the NLRA. This memorandum marks a shift in the NLRB’s prior broad prohibition on certain workplace rules and signals a more employer-friendly approach in interpreting federal labor law.

The NLRB memo, issued on June 6, 2018, provides practical examples for employers of specific workplace rules and breaks them down in to three categories of rules that are useful in evaluating employer policies. Rules in the first category are generally lawful and include those requiring civility and authorization to speak on behalf of the employer and preclude the disclosure of confidential customer information. Examples include rules against defamation or misrepresentation, rules against using employer logos or intellectual property, and rules requiring authorization to speak for the company. Rules in the second category warrant “individualized scrutiny” and include, for example, those regulating off-duty conduct, confidentiality and conflicts of interest. Rules in the third category are unlawful and include confidentiality rules regarding wages, benefits or working conditions. The memo does a good job of providing specific examples in each category that are informative in crafting and evaluating language contained in employer policies.

While not binding, this memo is instructive as to what the NLRB will be looking for in terms of its prosecution of employers. Employers are encouraged to carefully review their handbooks and technology-use policies to see where they might be able to articulate stronger expectations in light of the various examples offered in the memo. It is expected there will be more guidance and decisions coming out from the Board in this area over the next several months so employers should proceed cautiously in revisiting rules in their employee handbooks with the assistance of counsel. Beckage attorneys are available to help you draft or redraft rules in light of these changing standards and closely monitor this evolving area of employment law.  

DISCLAIMER: This client advisory is for general information purposes only. It does not constitute legal advice, and may not be used and relied upon as a substitute for legal advice regarding a specific issue or problem. Advice should be obtained from a qualified attorney or practitioner licensed to practice in the jurisdiction where that advice is sought.

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