As previously reported, the National Labor Relations Board (NLRB) has taken a very aggressive approach against employers by requiring them to rescind employee handbook provisions that it deems to be unlawful pursuant to the National Labor Relations Act (NLRA). In the most recent example of such an approach, an NLRB Administrative Law Judge (ALJ) found in favor of the United Food and Commercial Workers Union against Macy’s Inc. and held that several Macy’s employee handbook provisions unlawfully restricted its employees’ right to communicate and complain about workplace conditions. A copy of the Macy’s Inc. decision is here.
Specifically, the ALJ held:
- Macy’s confidential information policy that prohibited employees from disclosing information about the company or its employees could reasonably be perceived as unlawfully banning or restricting any discussion among co-workers of wages or any other terms and conditions of employment.
- An intellectual property policy, which prohibited employees from using the Macy’s logo “or other intellectual property” was overly broad and unlawful because the use of the company’s logo could be an effective means of publicizing a labor dispute.
- A government investigations and contacts policy, which obligated Macy’s employees to notify management prior to participating in any governmental investigation, was overly broad to the extent it hindered an employee’s unfettered right under the NLRA to freely communicate with the NLRB regarding working conditions.
The final issue the ALJ addressed was whether the savings clause in Macy’s handbook, clarifying that the policies in the handbook in no way impair its employees’ rights under the NLRA, was sufficient to remedy any of the overly broad employment policies. Holding against Macy’s, however, the ALJ found that the savings clause was ineffective because, among other reasons, it was “general” in nature and not specifically directed towards the unlawful policies at issue.
Concluding that Macy’s violated the NLRA, the ALJ required Macy’s to rescind the unlawful provisions and issue nationwide notices to all of its employees that the foregoing provisions were no longer in effect. This case is yet another example of why existing employee handbook provisions and policies (even those that are regularly included in standard employee handbooks) must be reviewed and, in certain circumstances, updated.