Hopefully you have heard by now that Employee Handbooks can be your friend. They give you an opportunity to set forth policies, procedures and avoid confusion about what you expect from employees. That sounds reasonable, right? Not so fast. Some policies, even policies that do nothing more than state the applicable state law on a subject, can land an employer in hot liability waters.

For those who don't closely follow decisions of the National Labor Relations Board (NLRB), thinking that it doesn't affect them as non-union shops, you are in for a rude awakening. The Acting General Counsel of the NLRB, Lafe Solomon, has begun broadly interpreting Section 7 of the National Labor Relations Act (NLRA) to include almost any action which could conceivably be construed to chill employee's rights to engage in concerted activity as unlawful. Yes, I intended to use the word "conceivably" and for once I am not dripping with sarcasm. I meant it.

By now, most employers understand that the NLRB protects employees who get together to complain about their pay, their benefits or how management treats them. I still occasionally run across policies in Employee Handbooks which advise employees to keep all compensation terms confidential. However, such policies have long exposed employers to a NLRB complaint, even when the workplace is not unionized. It is not a reach to conclude that a bald-faced prohibition on employees discussing compensation falls within the Section 7's protection of employees discussing the terms and conditions of their employment. But, sometimes it isn't so clear that the policy was intended to proscribe discussion of the terms and conditions of employment.

For example, what about a policy which forbids employees from posting "confidential guest, team member or company information" on social media? Unfortunately, this language has been construed by the NLRB's Acting General Counsel to be so broad and vague as to fall within Section 7's protections of employees' ability to discuss their working conditions. While that may seem like a stretch to many employers who rely on plain-language and common sense to guide their decisions, it was enough for the NLRB to find a violation.

In the past 9 months, the NLRB has issued three memos to clarify what an employer (union or not) may do in the social media context without potentially violating employee's rights. Specifically the Operations Management Memo describes several cases involving social media policies. In six of the seven cases the NLRB found some portion of the social media policy to be unlawful. Not long before that, the NLRB provided memos in August 2011and January 2012 describing discharge cases arising out of an employee's termination for content posted on Facebook.

But that's not the least of it.

Earlier this year, the NLRB issued an opinion that a policy that requires employees to acknowledge their at-will status could be chilling on an employee's Section 7 rights to engage in concerted activity. What!?!!? That's right, the NLRA's Acting General Counsel has taken the position that an acknowledgement in a Handbook that employment was at-will and that status could not be modified except in a writing, signed by management, violated Section 8(a)(1) of the NLRA because it would chill an employee's Section 7 right to engage in concerted activity. What, pray tell, were the offending provisions, found by the NLRB to be "overly broad, discriminatory, and coercive"? See below and tell me whether your Employee Handbook includes anything of the sort:

  • "I understand my employment is 'at will.'"
  • "I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me" and Hyatt's president or executive vice president/COO.
  • "[T]he at-will status of my employment... can only be changed in  writing" signed by the employee and one of the two Hyatt executives.

Texas has long applied the default rule of at-will employment, meaning that either party to the employment relationship can terminate the relationship at any time for any reason. Many jurisdictions do the same. But the NLRB has taken the position that having an employee confirm that he understands he is employed at-will is a violation of the NLRA. Lest you think this was an isolated incident, you should know that the Acting General Counsel has announced to more than one group across the nation, including the Connecticut Bar Association earlier this month, that the "next big enforcement focus will be on employers' "at-will" statements within employee handbooks.

I kid you not.

Get ready for it or risk being hoisted on your own petard.

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