It is early in 2021 and already the NLRB has before it ALJ determinations that employee handbook policies conflict with the NLRA. When analyzing employee handbook policies, the Board generally applies the Boeing test, whereby a handbook policy’s potential interference with employee rights under the NLRA is balanced against an employer’s legitimate justifications for the policy, when viewing the policy from the employee’s perspective. While the NLRA and the Boeing test apply to a number of employee handbook policies, confidentiality, social media, and solicitation/distribution policies are especially vulnerable.
Confidentiality policies can serve many purposes but primarily are in place as a means of protecting sensitive and proprietary information from disclosure to competitors and the general public. However, a primary function of the NLRA is to provide employees the right to disclose the terms and conditions of their employment with each other and third parties, including unions. Protected disclosures can include wage and benefit information, disciplinary history, and progress reports—information that often finds itself within the ambit of a confidentiality policy. As recent ALJ decisions have confirmed, confidentiality policies can interfere with employee rights under the NLRA when they are not sufficiently limited in scope and do not exclude from coverage employee communications and disclosures for protected purposes.
Social Media Policies
Social media policies can be useful tools to establish an employer’s expectations regarding employees’ public statements and help protect the employer’s reputation. However, the NLRA generally prohibits employers from restricting or attempting to control the content of employees’ public statements, unless such restrictions or controls tend to require adherence to basic standards of civility or serve legitimate business justifications. This year the NLRB has found that an employer’s business justifications are served by a social media policy that prohibits the sharing of general confidential information, speaking on behalf of the employer, and making disparaging statements. However, it is unclear whether the NLRB will hold course in the new political climate. As such, employers should consider adopting narrowly tailored social media policies—such as policies that prohibit unlawful conduct like discriminatory statements, defamation, and the disclosure of confidential information (defined to exclude information concerning the terms and conditions of employment)—to mitigate the risk that their policies interfere with employees’ rights under the NLRA.
Solicitation/distribution policies can promote employee safety and protect productivity by establishing parameters on when and where employees can solicit fellow employees for non-work related purposes or distribute non-work related literature. While these policies can reduce on-the-job distractions and contentious employee interactions, they must be carefully drafted to ensure they do not interfere with employees’ rights to engage in concerted activity protected by the NLRA.
While the NLRA does not require employers to allow employees to solicit other employees or make distributions during working time, or in active work areas, it does require employers to allow employees to engage in certain solicitations/distributions when employees are not working (for example, during break times) and in areas where work is not being performed (for example, in lunch rooms). Accordingly, employers should avoid introducing broad solicitation/distribution policies that prohibit non-work related solicitations/distributions generally, and should ensure such policies do not prohibit employees from engaging in protected solicitations/distributions during non-work time and in non-work areas. Further, employers should ensure such policies do not prohibit employees from engaging in protected solicitations/distributions in work areas when such are not active work areas.
Employee handbook policies are important tools to establish the expectations of the employer-employee relationship. However, these tools can often be used against employers if they are not carefully prepared to ensure compliance with the NLRA and the many other federal, state, and local laws that affect the employment relationship. Accordingly, employers should consider revisiting their employee handbooks with the assistance of labor and employment counsel to mitigate the risk that their employment policies conflict with applicable laws.