39 reasons why your employee handbook may violate the law

Before I get to a 1752-word blog post about the National Labor Relations Board going wee-wee all over your workplace Cheerios with this March 18 report from General Counsel Griffin, replete with examples of how your employee handbook is overly broad and violates the National Labor Relations Act, let me do two things:

  1. Shout out to employment lawyer and blogger Robin Shea and her fantastic job with the April Fools Edition of the Employment Law Blog Carnival. Word!
  2. The follow-up podcast I recorded with Casey Sipe and Jessica Miller-Merrell from Blogging4Jobs.com on the FMLA/ADA/WC questions we couldn’t get to during out hour-long webinar is now available. Email me if you’d like a copy.

So, about that report…The purpose of the report is to educate employers, with recent case developments, on what can and cannot be included in an employee handbook. What can’t be included is anything that could chill your employees from discussing the terms and conditions of employment with one another. Because the Act give employees, union or not, the right to do that.

What follows below are the highlights from the report, grouped into some of the various policies that may appear in your employee handbook:

Confidentiality Rules

Overly broad

  • Do not discuss “customer or employee information” outside of work, including “phone numbers [and] addresses.”
  • “You must not disclose proprietary or confidential information about [the Employer, or] other associates (if the proprietary or confidential information relating to [the Employer’s] associates was obtained in violation of law or lawful Company policy) 
  • “Never publish or disclose [the Employer’s] or another’s confidential or other proprietary information. Never publish or report on conversations that are meant to be private or internal to [the Employer].”
  • Prohibiting employees from “[d]isclosing … details about the [Employer].”
  • “Sharing of [overheard conversations at the work site] with your co-workers, the public, or anyone outside of your immediate work group is strictly prohibited.”
  • “Discuss work matters only with other [Employer] employees who have a specific business reason to know or have access to such information…. Do not discuss work matters in public places.”
  • “[I]f something is not public information, you must not share it.”
  • Confidential Information is: “All information in which its [sic] loss, undue use or unauthorized disclosure could adversely affect the [Employer’s] interests, image and reputation or compromise personal and private information of its members.”

Lawful

  • No unauthorized disclosure of “business ‘secrets’ or other confidential information.”
  • “Misuse or unauthorized disclosure of confidential information not otherwise available to persons or firms outside [Employer] is cause for disciplinary action, including termination.”
  • “Do not disclose confidential financial data, or other non-public proprietary company information. Do not share confidential information regarding business partners, vendors or customers.”
  • Prohibition on disclosure of all “information acquired in the course of one’s work.”

Employee Conduct Toward the Company and Supervisors

Overly broad

  • “[B]e respectful to the company, other employees, customers, partners, and competitors.”
  • Do “not make fun of, denigrate, or defame your co-workers, customers, franchisees, suppliers, the Company, or our competitors.”
  • “Be respectful of others and the Company.”
  • No “[d]efamatory, libelous, slanderous or discriminatory comments about [the Company], its customers and/or competitors, its employees or management.”
  • “Disrespectful conduct or insubordination, including, but not limited to, refusing to follow orders from a supervisor or a designated representative.”
  • “Chronic resistance to proper work-related orders or discipline, even though not overt insubordination” will result in discipline.
  • “Refrain from any action that would harm persons or property or cause damage to the Company’s business or reputation.”
  • “[I]t is important that employees practice caution and discretion when posting content [on social media] that could affect [the Employer’s] business operation or reputation.”
  • Do not make “[s]tatements “that damage the company or the company’s reputation or that disrupt or damage the company’s business relationships.”
  • “Never engage in behavior that would undermine the reputation of [the Employer], your peers or yourself.”

Lawful

  • No “rudeness or unprofessional behavior toward a customer, or anyone in contact with” the company.
  • “Employees will not be discourteous or disrespectful to a customer or any member of the public while in the course and scope of [company] business.”
  • “Each employee is expected to work in a cooperative manner with management/supervision, coworkers, customers and vendors.”
  • “Each employee is expected to abide by Company policies and to cooperate fully in any investigation that the Company may undertake.”
  • “Being insubordinate, threatening, intimidating, disrespectful or assaulting a manager/supervisor, coworker, customer or vendor will result in” discipline.

Employee Conduct Toward Co-Workers

Overly broad

  • “[D]on’t pick fights” online
  • Do not make “insulting, embarrassing, hurtful or abusive comments about other company employees online,” and “avoid the use of offensive, derogatory, or prejudicial comments.”
  • “[S]how proper consideration for others’ privacy and for topics that may be considered objectionable or inflammatory, such as politics and religion.”
  • Do not send “unwanted, offensive, or inappropriate” e-mails.
  • “Material that is fraudulent, harassing, embarrassing, sexually explicit, profane, obscene, intimidating, defamatory, or otherwise unlawful or inappropriate may not be sent by e-mail….”

Lawful

  • “Making inappropriate gestures, including visual staring.”
  • Any logos or graphics worn by employees “must not reflect any form of violent, discriminatory, abusive, offensive, demeaning, or otherwise unprofessional message.”
  • “[T]hreatening, intimidating, coercing, or otherwise interfering with the job performance of fellow employees or visitors.” 
  • No “harassment of employees, patients or facility visitors.”
  • No “use of racial slurs, derogatory comments, or insults.”

Third Party Communications

Overly broad

  • Employees are not “authorized to speak to any representatives of the print and/or electronic media about company matters” unless designated to do so by HR, and must refer all media inquiries to the company media hotline.
  • “[A]ssociates are not authorized to answer questions from the news media …. When approached for information, you should refer the person to [the Employer’s] Media Relations Department.”
  • “[A]ll inquiries from the media must be referred to the Director of Operations in the corporate office, no exceptions.”
  • “If you are contacted by any government agency you should contact the Law Department immediately for assistance.”

Lawful

  • “The company strives to anticipate and manage crisis situations in order to reduce disruption to our employees and to maintain our reputation as a high quality company. To best serve these objectives, the company will respond to the news media in a timely and professional manner only through the designated spokespersons.”
  • “Events may occur at our stores that will draw immediate attention from the news media. It is imperative that one person speaks for the Company to deliver an appropriate message and to avoid giving misinformation in any media inquiry. While reporters frequently shop as customers and may ask questions about a matter, good reporters identify themselves prior to asking questions. Every….employee is expected to adhere to the following media policy:… 2. Answer all media/reporter questions like this: ‘I am not authorized to comment for [the Employer] (or I don’t have the information you want). Let me have our public affairs office contact you.”‘

Logos, Copyrights or Trademarks

Overly broad

  • Do “not use any Company logos, trademarks, graphics, or advertising materials” in social media.
  • Do not use “other people’s property,” such as trademarks, without permission in social media.
  • “Use of [the Employer’s] name, address or other information in your personal profile [is banned]. . In addition, it is prohibited to use [the Employer’s] logos, trademarks or any other copyrighted material.”
  • “Company logos and trademarks may not be used without written consent….”

Lawful

  • “Respect all copyright and other intellectual property laws. For [the Employer’s] protection as well as your own, it is critical that you show proper respect for the laws governing copyright, fair use of copyrighted material owned by others, trademarks and other intellectual property, including [the Employer’s] own copyrights, trademarks and brands.”
  • “DO respect the laws regarding copyrights, trademarks, rights of publicity and other third-party rights. To minimize the risk of a copyright violation, you should provide references to the source(s) information you use and accurately cite copyrighted works you identify in your online communications. Do not infringe on [Employer] logos, brand names, taglines, slogans, or other trademarks.”

Rules Restricting Photography and Recording

Overly broad

  • “Taking unauthorized pictures or video on company property” is prohibited.
  • “No employee shall use any recording device including but not limited to, audio, video, or digital for the purpose of recording any [Employer] employee or [Employer] operation….”
  • A total ban on use or possession of personal electronic equipment on Employer property.
  • A prohibition on personal computers or data storage devices on employer property.
  • Prohibition from wearing cell phones, making personal calls or viewing or sending texts “while on duty.”

Lawful

  • No cameras are to be allowed in the store or parking lot without prior approval from the corporate office.

Rules Restricting Employees from Leaving Work

Overly broad

  • “Failure to report to your scheduled shift for more than three consecutive days without prior authorization or ‘walking off the job’ during a scheduled shift” is prohibited.
  • “Walking off the job …” is prohibited.

Lawful

  • “Entering or leaving Company property without permission may result in discharge.”

Employer Conflict-of-Interest Rules

Overly broad

  • Employees may not engage in “any action” that is “not in the best interest of [the Employer].”

Lawful

  • Do not “give, offer or promise, directly or indirectly, anything of value to any representative of an Outside Business,” where “Outside Business” is defined as “any person, firm, corporation, or government agency that sells or provides a service to, purchases from, or competes with [the Employer].” Examples of violations include “holding an ownership or financial interest in an Outside Business” and “accepting gifts, money, or services from an Outside Business.”
  • As an employee, “I will not engage in any activity that might create a conflict of interest for me or the company,” where the conflict of interest policy devoted two pages to examples such as “avoid outside employment with a[n Employer] customer, supplier, or competitor, or having a significant financial interest with one of these entities.”
  • Employees must refrain “from any activity or having any financial interest that is inconsistent with the Company’s best interest” and also must refrain from “activities, investments or associations that compete with the Company, interferes with one’s judgment concerning the Company’s best interests, or exploits one’s position with the Company for personal gains.”

Now, if you’re feeling lazy, and just want to “borrow” some handbook rules that the NLRB General Counsel has blessed, then flip to page 26 of the GC’s report, and you’ll find  “lawful handbook rules pursuant to [a] settlement agreement” between the Board and Wendy’s International, LLC.

Or, you can just keep your handbook, as is, and hope that the Board doesn’t darken your door someday with an unfair labor practice charge.

Updated:
  • Is it just me, or are some of the “overly broad” and similar “lawful” examples awfully close? I’ll have to take the time to read the whole report, but just your summary makes my head hurt.