Does Your Employee Handbook Need an Update?

Four Areas Your Employee Handbook May be Outdated

In the last few years, the National Labor Relations Board (NLRB) has shifted its focus from union employment to many non-union employers and employees. The NLRB governs most employers, union and non-union alike. There are some exceptions, such as agricultural enterprises, independent contractors, and many supervisors. Recent findings by the NLRB signal that many company handbooks may need revision to prevent policies from illegally broad application.

The National Labor Relations Act (NLRA) provides most employees with protection for “concerted activity for mutual aid and protection.” This includes a right to talk about wages and benefits, as well as working conditions. The Act prohibits employers from policies which chill employee engagement in concerted activities. There are limits to the protections of concerted activity. Specifically, concerted activity may not be disloyal or disruptive.

1. Many handbooks prohibit employees from soliciting at the workplace. The NLRB considered a case involving Target in 2013. Target proscribed solicitation at the workplace for commercial or personal profit. The NLRB found the policy to be too broad, because it could be read to prohibit employees from asking co-workers to sign union cards. Policies need to be narrowly tailored to ban solicitation during times that would be disruptive. For instance, in some cases, we can prohibit solicitation for personal profit or commercial purposes while an employee is on-duty. The company’s structure (professional, retail, etc.) will play into what is appropriate as a policy.
2. Off-Duty Access. A policy in a company handbook may prevent employees from accessing the workplace except when on duty. J.W. Marriott had such a policy, which gave exception only when employees had management approval. The Board decided J.W. Marriott’s policy was unlawful, as employees would think they needed management approval to engage in concerted activity at the workplace. For employers, this means a handbook should provide carefully considered rules regarding access to the workplace when an employee is off-duty.
3. Many companies, including service and professional firms, keep in place employee handbook policies to protect Company information. A recent decision from the NLRB involving a Mortgage Broker examined its confidentiality provisions. The Board determined that the provision of the Mortgage Broker agreement could be interpreted to dissuade brokers from discussing their workplace terms and conditions with co-workers or unions. Confidentiality agreements and policies should include business information while excluding personnel information.
4. Dress Code. Finally, the NLRB found a dress code of Target’s to be overly broad, because it could be read to prohibit employees from wearing union messages and insignia in the store. The Board did not accept Target’s reasoning that it was protecting its red and khaki brand. A company may ban unapproved clothing/logos if the prohibition is based on safety or public image. However, a policy such as Target’s, which purpose was to protect the company image, must be limited to store areas and times when an employee would interact with a customer. When crafting a dress code, a company should consider the purpose of the code and what limitations should be included in the dress code, so that it may pass NLRB scrutiny.

For more information about employment law or questions about if your employee handbook needs an update, contact the Goosmann Law Firm at info@goosmannlaw.com or call 712-226-4000.

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