Usually, when I write about handbooks, it is to warn my readers and clients that they must update manuals in conformance with case law or regulatory mandates. However, the latest two decisions coming from the National Labor Relations Board (NLRB) strike me as examples of such blatant overreaching that I am extremely reluctant to modify my standards based upon them.
The NLRB appears intent on striking down any employer policy that an employee might possibly interpret as restricting the right to speak out on pay, benefits and working conditions or in support or opposition of unionization.
Most well written handbooks contain a section on employee conduct, in which workers are reminded to act courteously toward their fellow employees, management, and the public. What could possibly be wrong with that? In the absence of such provisions, I can assure you that the Unemployment Insurance Board could award benefits and reach the conclusion that discourteous behavior wasn’t expressly prohibited! It also would seem to be a reiteration of basic, reasonable principles as to how everyone, management or worker, should conduct themselves in the workplace. Well, apparently, the NLRB doesn’t see it this way.
The NLRB has recently held that a policy prohibiting discourteous or inappropriate behavior was unlawful because employees could construe it to restrict their rights under Section 7 of the National Labor Relations Act! The link between workplace courtesy and complaints about working conditions is particularly attenuated. However, imagine a scenario in which a vendor approaches the receptionist, announces himself and asks if she is having a good day. Instead of the typical yes, she chooses to respond, “no, my boss is a jerk, I am poorly paid and I hate the place”. Can anyone imagine that this is appropriate conduct, particularly when it is involves a third party? And, furthermore, imagine if she goes into more detail, effectively slandering the employer. Will the next step be for the NLRB to declare such an outburst as protected speech?
In a second decision, the NLRB found that the following conduct standards are illegal:
- An instruction to refrain from negative comments about co-workers or management;
- A recommendation that the worker represent the company to the community in a positive and professional manner; and
- An instruction not to “engage in or listen to negativity or gossip”.
I cannot think of a handbook I have reviewed in the past year that did not contain similar principles. I do not personally believe that they, in and of themselves, violate Section 7 of the NLRA. In fact, I add a caveat to every handbook I write to the effect that any such statements shall in no way restrict workers’ rights to collective action under the NLRA.
So, what does the NLRB want from employers? I think that the agenda here is quite clear and disturbing. I am sure that my clients in the business community will come to the same conclusion.
However, review your manual. If it does not contain the disclaimer above, then modification will be required. Additionally, your self-auditing process should include review of the manual provisions at least annually.
Have a question or comment?
Contact Jennifer at Jennifer@Kirschenbaumesq.com or at (516) 747-6700 x. 302.