Probably not – in a recent case, an administrative law judge (ALJ) for the National Labor Relations Board (NLRB) rejected an employer’s argument that a savings clause added to the beginning of its employee handbook shielded the employer from liability.
The focus of the dispute in Macy’s, Inc. was whether the employer’s policies were unlawfully overbroad under Section 7 of the National Labor Relations Act (NLRA). No. 1-CA-123640 (May 12, 2015). The Union and the NLRB General Counsel argued that a number of the employer’s policies chilled the exercise of employees’ Section 7 rights. The ALJ agreed that many of the policies violated the NLRA for reasons similar to those discussed in the recent advice memorandum from the NLRB Office of General Counsel regarding employment policies. For example, the confidentiality provision was overbroad because it prohibited disclosure of “the personal information of the Company’s employees and customers.” In addition, the intellectual property policy prohibited the use of the Company’s logo or trademark, which the ALJ concluded may discourage employees from using the Company’s logo or trademark in Union materials.
After finding the employer’s policies violated the NLRA, the ALJ analyzed whether the employer’s savings clause neutralized the employer’s policies. Specifically, the employer sent its employees a message in April of 2014, notifying them that it added the following disclaimer as an introductory page to its handbook:
Nothing in the Code or the policies it incorporates, is intended or will be applied, to prohibit employees from exercising their rights protected under federal labor law, including concerted discussion of wages, hours or other terms and conditions of employment. This Code is intended to comply with all federal, state, and local laws, including but not limited to the Federal Trade Commission, Endorsement Guidelines and the National Labor Relations Act, and will not be applied or enforced in a manner that violates such laws.
The ALJ explained that in order to repudiate unlawful policies effectively, a savings clause must be “timely, unambiguous, specific in nature to the coercive conduct, and untainted by other unlawful conduct.” The ALJ determined that the employer’s savings clause was too generic in contrast to the specificity of the unlawful policies, and it did not specifically reference those policies. In addition, the savings clause was not added until 17 months after the promulgation of the rules at issue. Therefore, the ALJ concluded that the savings clause was ineffective.
Takeaway: A blanket savings clause at the introduction of an employee handbook may not be sufficient to bring overbroad employment policies into compliance with the NLRA.