The National Labor Relations Board just issued extensive guidance this week as to what types of employer polices and rules, in handbooks and otherwise, will be considered to be lawful and which are likely to be found to unlawfully interfere with employees’ rights under the National Labor Relations Act (“NLRA” or the Act”).
This NLRB's instructions are highly relevant to all employers in all industries that are under the jurisdiction of the National Labor Relations Board, regardless of whether they have union represented employees.
The NLRB's standard standard for deciding whether an employer policy unlawfully interferes with employees’ rights under the Act is generally whether “employees would reasonably construe the rules to prohibit Section 7 activity” – that is action of a joint or combined nature intended to address issues with respect to an employee's terms and conditions of employment.
Policies that can be implicated include handbook disclosure provisions, social media policies, conflict of interest policies, no distribution/no solicitation policies, and employee conduct rules, among others.
PRACTICE TIP: When drafting language for employee handbooks, policies, or work rules, avoid language that restricts employees from discussing terms and condition of employment or treats union-related speech/conduct differently than other non-union activities. As always, have your handbook reviewed by an attorney!
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