In recent years, the National Labor Relations Board ("NLRB") has engaged in increasing scrutiny of employee handbooks, not hesitating to shred a handbook section by section when it believes that its rules could be perceived by employees to limit their rights under Section 7 of the National Labor Relations Act, which is designed to protect "concerted activity" by employees in connection with the terms and conditions of the workplace.
The essential allegation in a recent NLRB case against T‐ Mobile, decided last month, was that its handbook maintained a series of conﬁdentiality rules requiring the employees to keep conﬁdential certain aspects of T‐Mobile's business interests. The NLRB asserted that "the relevant inquiry is whether employees would reasonably construe the challenged rules to prohibit Section 7 activity." In making this inquiry, the NLRB struck many provisions in T‐Mobile's employee handbook.
As the NLRB has grown increasingly hostile to anything that it perceives might potentially chill any Section 7 activities, it has engaged in a crackdown on handbooks that seems to grow more stringent with each decision. The ruling in the T‐Mobile case is consistent with recent NLRB rulings and should compel employers to review their handbooks and to beware of standard provisions which have been repeatedly criticized in recent years by the NLRB. Thus, as a checklist for those responsible for preparing or reviewing an employee handbook, note that the NLRB speciﬁcally ordered T‐Mobile to cease and desist from:
- Maintaining a provision in the Introduction section of its employee handbook stating that the handbook is a conﬁdential and proprietary document that must not be disclosed to or cannot be used by any third party without the management's written consent;
- Maintaining a rule in the Business Practices‐Internal Investigations section of its employee handbook that requires employees to maintain the conﬁdentiality of the names of employees involved in internal investigations as complainants, subjects, or witnesses;
- Promulgating and maintaining a rule in the Payroll‐Wage and Hour Complaint Procedure section of its employee handbook that requires employees who feel they have not been paid all wages or pay owed to them, believe that an improper deduction was made from their salary, or feel they have been required to miss meal or rest periods to contact a manager, an HR business partner, or the integrity line; Promulgating and maintaining a rule in the Workplace Expectations‐Communications with the Media section of its employee handbook that requires employees to refer all media inquiries to the management without comment;
- Maintaining a rule in the Acceptable Use Policy that prohibits employees from using its information or communications resources in ways that could be considered disruptive, oﬀensive, or harmful to morale;
- Maintaining a rule in its Acceptable Use Policy that prohibits employees from using its information or communications resources to advocate, disparage, or solicit for political causes or non‐company‐related outside organizations;
- Maintaining a rule in its Acceptable Use Policy that prohibits employees from allowing non‐approved individuals access to information or information resources, or any information transmitted by, received from, printed from, or stored in these resources, without the management's prior written approval;
- Maintaining a rule that requires employees to sign a Restrictive Covenant and Conﬁdentiality agreement that classiﬁes employee wage and salary information as conﬁdential and proprietary information not subject to disclosure;
- Maintaining a rule in the Conﬁdentiality and Information Security section of its Code of Business Conduct that prohibits employees from disclosing employee information that is deﬁned to include employee addresses, telephone numbers, and contact information and prohibits employees from accessing such information without a business need to do so and without the management's prior authorization or the consent of employees; Maintaining a rule in the Protecting Customer Information‐Conﬁdentiality of Each Other's Information section of its Code of Business Conduct that prohibits employees from disclosing employee information, such as employee addresses and other contact information, except in the proper performance of their duties, and suggests that employees may be disciplined or subject to legal actions for violating the rule; Maintaining a rule in the Conducting Business‐Commitment to Integrity section of its Code of Business Conduct that prohibits employees from making detrimental comments about the management or its customers, products, services, or employees; Maintaining a rule in the Conducting Business‐Commitment to Integrity section of its Code of Business Conduct that prohibits employees from arguing with co‐workers, subordinates, or supervisors; failing to treat others with respect; or failing to demonstrate appropriate teamwork;
- Promulgating and maintaining a rule in the Standards of Conduct‐Workplace Conduct section of its employee handbook that requires employees to maintain a positive work environment by communicating in a manner that is conducive to eﬀective working relationships with internal and external customers, clients, co‐workers, and management;
- Promulgating and maintaining a rule in the Workplace Expectations‐Recording in the Workplace‐Audio, Video, and Photography section of its employee handbook that prohibits employees from recording, using camera, camera phones/devices, or recording devices (audio or video) in the workplace without authorization from a manager, the human resources department, or the legal department; and
- Maintaining a rule that requires employees to sign an Employee Acknowledgment Form that obligates employees to comply with unlawful work rules and to report employees who do not comply with rules and policies that have been found to be unlawful.
Certain themes emerge in connection with the NLRB decision. Repeatedly, language was criticized for being "so broadly written that it would chill any employees in the exercise of their Section 7 rights." The actual intent behind the language, no matter how benign, is irrelevant. Similarly, any language that "could reasonably be understood by employees as prohibiting them from sharing and discussing [certain information] with union representatives or governmental investigative bodies" will also fail to survive scrutiny. Rules with broad, sweeping language designed to prohibit "abusive conduct" or to promote a "positive work environment" ‐‐ again, seemingly benign ‐‐ are criticized repeatedly by the NLRB in this and other recent decisions. All employers are urged to review their handbooks in light of this spate of NLRB decisions that continue to rewrite the rules ‐‐ literally ‐‐ as to what is acceptable under the National Labor Relations Act.