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National Labor Relations Board And The Employee Handbook

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For many reasons, I imagine the Founding Fathers would be surprised to see the form of today's government. Specifically, they envisioned three (3) branches of government: Executive, Legislative and Judicial. They probably never contemplated the powerful fourth branch: Administrative Agencies.

One of the most powerful agencies, and surely the most ideologically aggressive, is the National Labor Relations Board ("Board"). The Board administers numerous federal laws, and most importantly, the National Labor Relations Act ("Act").

It is tempting to believe that the Board - and the Act - only affect union businesses. This would be an incorrect assumption. One section of the Act - Section 7 - applies to non-union businesses as well.

The Board has been aggressively challenging employer (including non-union) policies. Often, its scrutiny extends to provisions of employee handbooks. Recently, the Board's General Counsel issued a report identifying eight (8) employment policies which the Board will closely scrutinize and challenge.

The Board has long taken the position that even neutrally worded employment policies can violate the Act if they have a chilling effect on the right of employees to engage in protected Section 7 concerted activities. These activities include discussing wages, benefits, and other terms and conditions of employment with other employees and with outside parties, such as government agencies, union representatives and the news media.

These policies are often contained in Handbooks. Let us take a somewhat abbreviated look at the four (4) of eight (8) policies targeted by the Board.

The first are confidentiality policies. Many businesses have legitimate confidential or proprietary information, like trade secrets, customer lists, manufacturing processes and the like, to protect. However, the Board has stated confidentiality policies may not prohibit employees from discussing their wages, hours, workplace complaints or other personal information.

The Board has also challenged policies designed to govern the manner by which employees engage the employer and its supervisors. Prohibiting employees from disparaging the employer's products, or requiring employees to be respectful to customers, vendors and competitors will typically be acceptable. However, policies prohibiting employees from generally being rude or disrespectful would be challenged.

How about the relationships between co-workers? The Board will approve a policy which prohibits harassing and discriminatory conduct amongst co-workers. However, it will prohibit a policy which attempts to bar all negative or derogatory conduct: the Board believes a policy like this would impede frank discussions about terms and conditions of employment.

Let's try one more. Many employers have a conflict-of-interest policy. For example, the policy may prohibit employees from having a financial interest in a customer or competitor. For the Board, this type of policy does not impede Section 7 activities. However, a policy prohibiting acts which are "not in the company's interest" are too broad, and are therefore prohibited.

In light of the Board's report, and its aggressive position with respect to Section 7 protected activities, employers should have their Handbooks reviewed, and if necessary, revised.

If you have questions regarding the National Labor Relations Board and The Employee Handbook, or other similar issues, please contact your HWE relationship attorney or visit us at http://www.hwelaw.com.

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