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The National Labor Relations Board (NLRB) Office of the General Counsel (OGC) recently released a report providing new guidance to all employers regarding employee handbook rules and other personnel policies relating to rules commonly found in most handbooks, such as confidentiality (ie: discussing wages and employment conditions with co-workers or others), professionalism, anti-harassment, trademarks, and media contact rules. All employers should review their current policies to ensure they comply with the OGC’s current position on the topics.
While it is a common misconception, the NLRB and its rules apply to all employers, not just union businesses. Since it is common for most small businesses to have a non-union workforce, these companies should pay particular attention because their handbooks may be considerably non-compliant. Nevertheless, all businesses with employees should take note, because this legal area continues to see an increase in litigation, which puts resources at risk.
Under Section 7 of the National Labor Relations Act (NLRA), represented and non-represented employees have the right to engage in “protected concerted activity.” The OGC provides guidance and examples in the report as to what it considers lawful and unlawful rules regarding possible restrictions of employee’s protected concerted activity. Most handbook policies are likely vague, overbroad or fail to provide enough specifics or examples, and as a result, employees may reasonably construe that their protected conduct is prohibited by their handbook. Thus, the employer is in violation of Section 7 of the NLRA, and is exposed to potential financial liability.
With the continued use of social media and electronic communications, both inside and outside of the workplace, these issues are only going to increase as employers try to protect their brands and intellectual property, and employees continue to speak openly and freely to the world at the touch of a button.
It is important for businesses to review their current employee handbooks and other personnel policies to ensure they comply with the report and current law, and review them periodically as this area of law is in constant flux. Well-drafted policies protect and benefit both employers and employees.
If you need assistance with this or any other employment law or business-related matter, please contact us. We are here to serve you.
Link to NLRB OGC Report:
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