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Revising Employee Handbooks: Sometimes It’s Still Not Enough to Meet NLRA Requirements in Non-Union Workplaces

May 13, 2015 Employment law

The proverbial plot continues to thicken when it comes to the National Labor Relations Board’s (“”NLRB””) policing of social media policies, dress code policies, and other common employee handbook provisions. In one of the latest story turning points, the NLRB pronounced that simply rescinding unlawful policies, as by deleting them from the employee handbook, may not suffice to comply the law. The NLRB has closely scrutinized employee handbooks and policies in recent years, issuing a series of decisions that delineate the applicability of the National Labor Relations Act (“”NLRA””) to various employee handbook provisions, with a special focus on social media policies. The Board’s decisions, as well as the agency’s guidance, all trend toward a crack-down on any policy that purports to affect the right of employees to discuss or otherwise take actions together directed toward betterment of the terms and conditions of their employment. Such policies are potentially problematic because the NLRA protects the right of employees to “”self-organization,”” which includes not just “”collective bargaining”” in the traditional union-context sense, but also “”other concerted activities for … mutual aid or protection.”” And notably, because these “”concerted-activity”” protections extend to non-unionized workplaces, the Board’s enforcement actions and guidance are of pervasive application and importance. The Board’s April 30 decision in Boch Imports, Inc. includes two distinct features, each of which teaches important lessons about employee handbooks generally, and social media and dress code policies in particular. As a threshold matter, the Board concluded, consistent with its trend toward strict scrutiny of handbook provisions, that the car dealership’s social media and dress code policies violated the NLRA’s protection of concerted activity. Specifically, the social media policy prohibited anonymous postings, requiring instead that employees identify themselves in any comment about the employer, its business, or any of its policies. Because employees could reasonably interpret this self-identification policy to interfere with their NLRA-protected right to discuss the terms and conditions of their employment, the Board concluded that it violated the law. Similarly, the policy prohibiting employees from wearing “”pins, insignias, or other message clothing”” also violated the NLRA. The employer contended that the policy was intended to promote maintenance of a professional public image and to protect employees as well as company property (vehicles) from damage potentially caused by pins, but the Board rejected the employer’s position, construing the policies as overbroad for their potential deterrent effect on the wearing of union insignia clothing and accessories.

The Board’s conclusion that these policies violated the NLRA exemplifies its strict application of the law to employer policies that otherwise seem reasonably calculated to protect legitimate business interests, and thus obviates the need for employers to closely scrutinize their own policies to assess their compliance. What is more remarkable about this decision, though, is its conclusion that the employer didn’t do enough to correct its offending policies when it simply removed them from the handbook. Indeed, that’s just what the car dealership here did — after receiving a complaint about its allegedly offending policies, the employer rescinded the problematic ones and issued a new handbook. But that wasn’t enough. The Board’s decision affirmed the ALJ’s conclusion that the law requires not just rescission or repudiation, but also that the employer affirmatively promise that it will not in the future interfere with employees’ rights as protected under the Act. In other words, because the employer rescinded the offending policies without also promising prospectively that it would not adopt any policy or take any action that could interfere with the employees’ NLRA-protected rights, the employer failed to comply with the law.

Two important lessons therefore emerge from this decision: (1) employers must carefully scrutinize their employee policies and handbooks to ensure that no policy could be interpreted to inhibit discussing or otherwise taking action in an effort to protect the conditions or terms of employment (with social media and dress code policies being just two examples of where such problems might occur); and (2) where any such offending policies are found, the employer must not only rescind them, but also provide clear notice of the repudiation, accompanied by an affirmative promise not to infringe on employees’ statutorily-protected rights in the future.

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