Employers of all sizes often maintain, for a variety of reasons, an employee handbook. These handbooks usually summarize, in varying degrees of detail, employment policies, procedures and rules applicable to employees.
When done properly, employee handbooks are a positive employee relations tool, helping to explain the employer’s expectations and policies, and, in turn, allowing the employer to better maintain order and discipline in the workplace.
While employee handbooks are generally positive tools in the workplace, they can also raise a number of legal issues. In addition to contractual and other employment law issues, employee handbooks pose a potential area of employer liability under the National Labor Relations Act (NLRA).
The NLRA governs the conduct of employers and labor unions with respect to employees’ right to join — or not to join — a labor union and to engage in “concerted activities.”
In a number of areas, decisions under the NLRA will dictate what can or should be contained in an employee handbook. If not carefully drafted, an employee handbook policy, statement or rule can violate the NLRA.
A wide range of policies in employee handbooks could raise labor law issues. Three areas in which employee handbook policy statements frequently clash with the NLRA are confidentiality, solicitation and distribution, and misconduct policies.
In each of these areas, employer policies can unwittingly go further than the NLRA permits.
Consider first confidentiality policies. Employee handbooks often advise employees that there are certain items that they must keep confidential and not discuss with each other or with outsiders.
Employees have an NLRA-protected right, however, to discuss their wages, benefits or other terms or conditions of employment with co-workers and union organizers. To the extent, therefore, that an employer’s policy prohibits discussion of these topics, the policy is unlawful.
The second employee handbook policy that often raises legal issues is the employer’s policy on solicitation and distribution. Under the NLRA, an employer may only prohibit solicitation by its employees during working time. It may only restrict distribution of literature by employees during working time or in working areas.
An employer’s statement of its solicitation and distribution rules in an employee handbook that exceeds these general guidelines and others that the law provides is automatically unlawful. Supervisors or managers who enforce an overly broad solicitation and distribution policy against union-oriented conduct will create further legal liability for the employer.
Finally, nearly all employee handbooks contain a list of work rules, the violation of which can result in discipline for the employee. These rules can also cause potential liability for the employer.
For example, under the NLRA, an employer policy that prohibited “false, vicious, profane or malicious statements” was found unlawful because it could be read to prohibit “merely” false statements that were not malicious. Likewise, employer policies restricting off-duty employee access to the work site are also limited under the NLRA.
While the maintenance of an employee handbook can be a positive part of an employee relations strategy, it is not without legal risks if drafted improperly. Employers should ensure, therefore, that their handbook is regularly reviewed by labor and employment counsel to ensure that they do not unwittingly adopt or enforce rules that violate employee rights under the NLRA.
Nelson D. Cary is an attorney in the Columbus office, where he practices in the labor and employment group. Cary is experienced in representing management in a broad range of labor and employment matters. Reach him at (614) 464-6396 or [email protected].
