NLRB's Latest Decree: Handbook Stipulations on Employee Behavior and Speech May Need a Rewrite

In the ever-evolving landscape of labor relations and employee rights, the National Labor Relations Board (NLRB) has once again shifted the parameters for what is considered permissible conduct for employers when it comes to employee behavior and speech. Business leaders, HR professionals, and legal advisors need to stay abreast of these changes as they can have a significant impact on company policies and handbooks. 

The Latest Decree 

The reconstituted NLRB has recently issued a decree that specifically impacts rules within employee handbooks aimed at regulating criticism by employees. According to the NLRB's ruling, such rules must now contain clear language stating that they apply only to unprotected activity—activity that is not related to wages, hours, or working conditions. This ruling effectively tightens the reins on employers, narrowing the scope of what they can regulate within their organizations. 

Previous NLRB boards had, at times, relaxed these requirements, leading to a back-and-forth effect on what constitutes permissible conduct for employers. This oscillation has created a challenging environment for businesses to navigate when it comes to crafting and enforcing employee policies. 

An attorney involved in the matter emphasized the significance of this ruling, stating, "[This ruling] means all policies that restrict employee speech and actions—inside and outside of the company—must be reviewed and likely revised." This sweeping impact extends to various areas within employee handbooks, including social media and communication policies, confidentiality in investigations, insubordination, cell phone and camera usage, safety protocols, recording of meetings, and even comments made to external sources such as the media. 

What's at Stake? 

The crux of the matter is ensuring that employee handbooks strike the right balance between maintaining a productive work environment and respecting employees' rights under the National Labor Relations Act (NLRA). The NLRA safeguards employees' rights to self-organization, the formation of labor organizations, collective bargaining, and other concerted activities for mutual aid and protection. Employers must be mindful not to encroach on these rights. 

Adding a "Robust Disclaimer" 

In light of the NLRB's latest decree, HR professionals and legal advisors are recommending the inclusion of a "robust disclaimer" in employee handbooks. This disclaimer serves to clarify the company's stance on employee rights under the NLRA, ensuring that it does not infringe upon these legally protected rights. A sample disclaimer provided for consideration reads as follows: 

"Nothing in this [agreement/handbook/policy] prohibits or restricts Employee from exercising Employee’s rights under the National Labor Relations Act (NLRA), including rights under Section 7 of the NLRA, such as the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or any other activities protected by the NLRA." 

It's important to note that this disclaimer is not considered legal advice but rather a precautionary measure to help organizations navigate the evolving legal landscape surrounding employee rights and speech. 

Conclusion 

In the wake of the NLRB's latest ruling, it is incumbent upon businesses to reevaluate their employee handbooks and policies. The key is to strike a balance between maintaining a respectful and productive work environment while respecting employees' rights under the NLRA. As the legal landscape continues to evolve, staying informed and adapting policies accordingly will be essential for businesses to ensure compliance and foster positive workplace relationships.