Does a company's confidentiality provision or agreement mention personnel documents? Does the employee handbook prohibit employees from talking about their working conditions? Does the company prohibit solicitations and distributions during working hours?
Does the company terminate employees for violating these rules? If the answer to any of the above questions is yes, a company's risks include reinstatement and back pay if one of its employees files a legal action against it.
The start of a new year is the perfect time to set a human resource professional's goals for the company. Now is the time to have the annual review of the employee handbook and ensure that the policies are not unlawful. One of those goals should include a review of the company's employee handbook with respect to the National Labor Relations Act ("NLRA").
Besides the EEOC and OSHA, the National Labor Relations Board ("NLRB") continues to speak loudly. Section 7 of the NLRA protects employees' right to support and participate in a union as well as their right to act together to try to improve their pay or working conditions. This latter is called "protected, concerted activity," and it is a right that can be exercised with or without union representation. Thus, the NLRB, the government agency charged with enforcing the NLRA, may have jurisdiction over almost all companies in the United States regardless of whether a company's employees are represented by a union or not. Further, lawyers that represent employees are smart enough to file actions in a number of forums in an effort to recover lost wages and damages for current and former employees. If a rule of the company is deemed unlawful, disciplining or terminating an employee for violating that rule is also unlawful, and the company will have to pay the price for its mistake. In the light of the above, human resource professionals should review and be aware of potential legal ramifications of provisions in their employee handbooks and take action to mitigate the liability that their companies may face under the NLRA.
What are some problematic provisions that employment lawyers encounter in employee handbooks and that they are forced to defend? The following are examples of language in employee handbooks that may lead a company to trouble:
1. "Confidential information includes proprietary trade secrets and information about customers, vendors and employees."
This rule is unlawful, because it is overly broad. By using the word "employees," the company is prohibiting employees from talking about their wages, benefits and working conditions. When employees are unsure how to interpret a handbook's provision, the provision interferes with, coerces, and restrains their rights.
2. "Employees should respect their supervisors."
This rule is unlawful. If an employee talks about her supervisor to other employees, the employee may well be talking about her working conditions. For example, these working conditions may include how a supervisor delegates assignments. Complaints are concerted, protected activity because they may encourage activities by two or more employees to take action about those working conditions.
3. "Employees should not solicit other employees or distribute materials during working hours."
This provision is unlawful. The NLRB makes a distinction between "working hours" and "working time." Working hours are the hours that a company is open for business. Although a company may require an employee to be present at the company during "working hours," the employee works during "working time." During non-working time — lunch, breaks and before and after work — employees are not working. During these times, employees have the to solicit other employees for contributions to charitable organizations. If an employee has the right to solicit donations for a charitable organization, a company may not discriminate and must allow solicitations for unions and all other organizations. Exceptions may apply, however, in hospitals and nursing homes, where the circumstances are much different than those in offices, sales organizations and manufacturing environments.
4. "Employees may not discuss company matters with the news media and must direct all media inquiries to the Marketing Department.
By using the words "company matters," employees may interpret this policy as prohibiting them from discussing their wages, hours and working conditions with the media. Such a broad restriction violates an employee's right to encourage other employees to join a group effort to improve their working conditions. The language interferes with, coerces and restrains employees.
These are just a small number of examples. Each year, every human resource professional should become familiar with the latest legal decisions affecting the policies stated in their employee handbooks. When disciplining or terminating an employee, the human resource professional's risk analysis must include all possible claims an employee may bring, including whether the adverse action is based upon an unlawful policy in an employee handbook.