The National Labor Relations Board’s aggressive scrutiny of employer handbook policies does not appear to be coming to an end any time soon.  As such, employers (even those without unionized workforces) should ensure their policies are free from language that may discourage employees from exercising their rights under Section 7 of the National Labor Relations Act to engage in “protected concerted activity.”

While the NLRB General Counsel’s recent memorandum provides various examples of lawful and unlawful handbook provisions, the rationale provided for finding certain provisions acceptable or unacceptable is not always clear.  Regardless of any confusion cleared up (or caused) by the memo, the following five provisions are a good place to start when reviewing your employee handbook:

  1. Confidentiality Provision. Under the NLRA, employees have the right to discuss with each other the terms and conditions of their employment, including wages, benefits, assignments, treatment by supervisors, etc.  Confidentiality provisions that are overly broad and prohibit disclosing personnel or employee information, such as pay or discipline, would likely violate the NLRA.
  2. Courtesy/Non-Disparagement Provision. Because employees have the Section 7 right to criticize their employer’s treatment of employees, a policy that could be read to discourage employees from doing so would violate the NRLA.  For example, policies that prohibit employees from engaging in “rude,” “negative,” or “disrespectful” conduct towards the company or management are likely unlawful.   Likewise, policies that prohibit “negative” or “inappropriate” discussions among employees will likely also run afoul of the NLRA because employees have the right to argue amongst each other about unions, the company, and their terms and conditions of employment.
  3. At-Will Employment Provision. An at-will employment provision that states the at-will employment relationship cannot be amended or modified in any way could violate the NLRA because it may lead employees to believe it would be futile to attempt to organize to change their at-will status.
  4. No Disruption Provision. Policies that prohibit employees from causing or creating a disruption during working hours could be read to bar an employee’s right to engage in a work stoppage or discourage an employee from participating in a meeting or other protected Section 7 activities.
  5. Use of Employer E-mail Systems. Under the recent Purple Communicationsdecision, employees now have the right to use their employer-provided e-mail account during non-working time for non-business purpose, including activities covered by Section 7.  Employers should ensure their e-mail policy permits such use.