Employee Handbooks: Ripe for the Picking

Employee handbooks often contain provisions that violate the National Labor Relations Act (NLRA). Unknowing employers unfamiliar with their obligations under the Act typically craft broad employee handbook provisions that the National Labor Relations Board (NLRB) determines stifle or threaten the employees’ right to participate in protected concerted activities—namely, the right to band together to protest or address issues concerning their wages, hours, and working conditions (Section 7 rights). Handbook provisions that violate the NLRA can have disastrous effects.

The issue of whether employee handbook provisions violate the NLRA most often arises during union organizing campaigns. A union attempting to organize a nonunion company will file a charge with the NLRB alleging that specific provisions of the employee handbook somehow interfere with the employees’ right to organize. Even when the NLRB investigates an employer on charges having nothing to do with an employee handbook, it will often scrutinize an employee handbook as a matter of course to determine if any of its provisions violate the NLRA. Handbook provisions for which the NLRB routinely finds violations include no-solicitation rules, no-access rules, confidentiality/disclosure rules, and no-disruption/abusive language rules.

Most employee handbooks contain no-solicitation rules that prohibit employees from soliciting donations or support for organizations from other employees. These rules are okay so long as they prohibit solicitation only during working hours. Employees must be allowed to solicit each other during nonworking hours; this allows employees to engage in their rights protected by the NLRA. Some no-solicitation rules, however, contain statements to the effect that employees "may not solicit employees on company property." The NLRB has determined that such blanket prohibitions are too broad and violate the Act because they prevent employees from soliciting each other at any time, as opposed to just during working hours. Employees must be free to solicit during nonworking time, even on company property, in order to guarantee them their right to participate in protected concerted activity under the Act.

No-solicitation rules also come into play when considering an employer’s e-mail policies. While the NLRB has determined that an employer’s computer and computer network can be "work areas," it has held that certain e-mail communications are solicitations that cannot be prohibited in work areas. For example, a typical e-mail policy might read, "E-mail is only to be used for the purpose of business communication." Because rules like the one quoted prohibit all nonbusiness use of e-mail communications, the NLRB has found such rules to be overly broad and unlawful as interfering with an employee’s right, for example, to solicit coworker support via e-mail with respect to issues concerning wages, hours, and working conditions. Accordingly, employers should consider including statements in their e-mail policies to the effect that the stated rule is not intended to apply to communications concerning wages, hours, and working conditions, or more generally, that it is not intended to prohibit any communications allowed by law.

Employers must avoid the selective enforcement of no-solicitation rules. Quite often employers will have valid no-solicitation rules in place, but they go unenforced. In other words, the employer allows employees to solicit for all types of organizations, but when solicitations concerning union organizing emerge, the employer suddenly begins to either strictly enforce its no-solicitation rule or enforce the rule only as against union solicitations. By previously allowing employees to solicit in spite of a valid no-solicitation rule, an employer impliedly waives its no-solicitation rule. And by selectively enforcing the rule against union solicitations, an employer has violated the NLRA.

No-access rules prohibit employees from entering or remaining on company property before or after working hours without authorization. These rules are okay if they: (1) limit access only to working areas; (2) are disseminated to all employees; and (3) apply to off-duty employees entering the facility for any purpose. Off-duty employees must be allowed entry to parking lots and other similar nonworking areas unless there is a legitimate business justification for preventing such access. Allowing off-duty employees access to nonworking areas further guarantees all employees the right to engage in organizing activity protected by the Act.

These rules typically prohibit employees from disclosing, whether to each other or outside sources, varied information that the employer deems confidential. Some employee handbook provisions, for example, may broadly prohibit "the discussion and disclosure of sensitive information regarding the company’s internal business affairs with anyone outside of the company," or more specifically prohibit "the discussion and disclosure of salaries and benefits with co-employees or anyone outside of the company." The problem with these rules is that employees must be free to discuss issues concerning their wages, hours, and working conditions. While discussing these issues, whether among themselves or with a union, employees may determine that an employer’s pay and other practices are unfair, and thus seek to organize. Improperly drafted confidentiality rules may suggest to employees that certain rights guaranteed them by the NLRA will not be tolerated by their employer.

Employee handbooks often contain rules regulating employee disruptions, insubordination, and abusive language. A typical "no-disruption" provision might read: "Causing, creating, or participating in a disruption of any kind during working hours on company premises is prohibited." The NLRB has several times found the word "disruption" to be too broad in that it may be interpreted by employees to include protected activity, such as walking off the job to protest working conditions. Similarly, a typical "abusive language" rule might read: "Using abusive language at any time on company premises is prohibited." The NLRB has determined that such abusive language rules could be interpreted by employees as prohibiting them from engaging in union organizing activity and disseminating pro-union literature and propaganda, which is typically ruthlessly critical of an employer and its employment practices. For these reasons, no-disruption/abusive language rules often violate the NLRA.

Employee handbooks are ripe for the picking when the NLRB investigates an employer for violations of the Act. Overly broad and vague handbook provisions can lead to an NLRA violation and to the setting aside of an employer’s victory in a union representation election. Accordingly, it is important that employers review their employee handbooks with knowledgeable counsel versed in labor law to increase the odds of passing NLRB scrutiny. Moreover, the selective enforcement of valid employee handbook provisions, namely enforcing the rules only with respect to employees’ union organizing activities, is a sure violation of the NLRA. It is important, therefore, that employers be consistent in their enforcement of valid employee handbook provisions.

Kato Crews’s practice focuses on litigation and traditional labor and employment law matters. He joined RJ&L in 2001 after serving as an attorney with the U.S. National Labor Relations Board, Region 27, in Denver. Mr. Crews advises and represents employers in all aspects of the employment relationship. He is a 2000 graduate of the University of Arizona College of Law.

©2003 Rothgerber Johnson & Lyons LLP