The National Labor Relations Board (NLRB) is scrutinizing employee handbooks that violate the National Labor Relations Act (NLRA), the law that protects an employees’ collective bargaining and organizing rights. The NLRB looks for workplace rules that restrict—or could be construed to restrict—employees’ right to engage with each other, to organize (including forming, joining or assisting labor unions) and to take other collective action. The language employers use in their employee handbooks is key, because provisions meant to protect the employer may violate the NLRA. The NLRB recommends employers use detailed wording, sufficient context and clarifying examples to prevent misinterpretation.
According to NLRB guidance, your organization’s handbook must not:
- Prevent employees from discussing hours, wages or other terms of employment, or give employees the impression that they cannot discuss hours, wages, or other terms of employment with each other and with non-employees. However, your handbook may contain a confidentiality provision that specifically applies to the privacy of business details.
- Prevent employees from criticizing your organization or its supervisors or lead employees to believe that criticizing your organization or its supervisors is restricted. Rules that broadly prohibit “disrespectful,” “rude,” or “inappropriate” behavior without context are often found to be unlawful.
- Prevent employees from engaging in discussion among themselves. Rules that broadly prohibit “derogatory,” “insulting,” or “offensive” comments without context are often found to be unlawful.
- Prohibit employees from speaking on an individual level with the media or other third parties, including about terms and conditions of their employment. However, your handbook may prohibit employees from speaking to the media or other third parties on behalf of the employer without authorization.
- Prevent employees from using your organization’s name, logo, or trademark in a non-commercial manner. However, your handbook may require employees to respect copyright and intellectual property laws.
- Contain a total ban on photography, recordings or the use of a camera on company property. However, your handbook may regulate photography and recording in the appropriate interest of privacy or while employees are on their “work time.”
- Contain any provision that your employees would reasonably interpret as preventing them from going on strike, engaging in walkouts or “walking off the job.” However, your handbook may prohibit employees from leaving the workplace without permission for reasons unrelated to organizing or unionizing activities.
- Contain a broad rule prohibiting any employee conduct that is not in the best interest of the company. However, your handbook may contain specific policies preventing self-dealing or competition against the company.
- Provide male employees with less parental leave than female employees upon the birth of a child. Furthermore, your handbook must include information about pregnancy accommodations.
Other employment guidelines to consider when crafting your handbook include, limiting unemployment and post-employment claims by:
- Mandating employees sign a written document detailing your organization’s attendance and punctuality expectations, provided they comply with federal, state and local leave laws.
- Providing written notice to any employee in violation of these expectations before termination.
- Keeping all relevant records, including a copy of your attendance policy and all supporting documentation in the case of an employee’s termination.
Ensure compliance with updated sick leave laws (in Chicago and some other Cook County municipalities) by:
- Allowing your employees to accrue up to 40 hours of paid sick leave per year and carry any unused time over into the next year.
- Allowing your employees to use at least half of their annual accrued paid sick leave to care for their children or other family members.
If you have any questions about whether your employee handbook complies with the law or you would like a handbook drafted in accordance with the NLRA and other applicable laws, please contact Marcus & Boxerman at (312) 216-2720 or firm@marcusboxerman.com.