NLRB: Many of your employee handbook policies are probably unlawful.

By Roger Cook and Don Shanosky (Unknown) [CC0], via Wikimedia Commons

As is often the case when a Republican sits in the Oval Office, the National Labor Relations Board tilts employer-friendly. Indeed, once President Trump’s two nominees fill two vacancies on the Board, Republicans will hold a Board majority for the first time in 9 years.

Until then, I picture the more employee-friendly Board remaining from the Obama years going out in a blaze of glory.

Lighters up!Indeed, consider this recent decision from a Phoenix Administrative Law Judge involving a fairly vanilla employee handbook. Or, so you’d think.

To do that, let’s set the stage for you. Under the National Labor Relations Act, employees have the right to discuss working conditions with one another. When employers have work rules, policies, procedures, whatever, that infringe upon those rights, they violate the Act.

And, since the Act covers a lot of non-union workplaces too, you should be interested in reading further. Unfortunately, because I have trouble with metaphors unless they somehow revolve around late 90’s wrestling, I’ll have to relate the ALJ’s treatment of these policies to some jobber jabroni getting destroyed with a rock bottom.

Your employees can straight-up lie about being sexually harassed.

Jabroni Jobber Policy:

If, after investigating a complaint … , the Company determines … that persons involved in the investigation provided false information, the individual(s) who made the false allegations or gave the false information may be subject to appropriate discipline, up to and including termination ….

Rock bottomed because…

While employers may proscribe “maliciously false” statements, broader prohibitions of merely “false statements” have a reasonable tendency to chill protected activity and are unlawful….The instant policy, which broadly subjects workers who merely provide false information during an investigation, is, thus, unlawful.

Your employees don’t have to disclose conflicts of interest with your business.

Jabroni Jobber Policy:

We expect our employees to … always avoid activities … inconsistent with the best interests of the Company and our clients. Business dealings that reasonably appear to create a conflict between the interests of an employee … and the Company or a client are unacceptable. The Company recognizes the right of employees … to engage in activities outside of their employment that are unrelated to our businesses. However, the employee … must disclose any possible conflicts ….

Rock bottomed because…

This policy, which bans conflicts of interest and has an ongoing disclosure requirement, is unlawful, given that it can be reasonably construed to bar any §7 activities

You can’t require requests for employee references to go through HR.

Jabroni Jobber Policy:

All requests for information regarding a[n] … employee must be forwarded to the Human Resources Department for response. Should an employee … receive a … request for a reference, the employee should direct the individual seeking information … to the Human Resources Department ….

No Company employee may … supply employee information … without … permission ….

Rock bottomed because…

This policy may reasonably be construed to ban employees from engaging in their §7 right to discuss wages or other workplace issues amongst themselves or with a union.

Your workplace can become one big episode of The Wire.

Jabroni Jobber Policy:

[I]t is a violation of Company policy for an employee … to record conversations at or related to their work or services at the Company with a tape recorder, mobile device or any other recording device or to make a video recording in a work-related setting unless (1) prior approval has been granted by the Company…, or (2) use of the device has been otherwise properly authorized in connection with the employee’s … performance of his … assigned duties ….

Violation of this policy will result in … disciplinary action, up to and including immediate termination of employment …

Rock bottomed because…

This policy, which prohibits unauthorized workplace recordings, unlawfully and over-broadly encompasses recordings made for one’s own mutual aid and protection (i.e. it even covers recordings where the company may lack an overriding interest in its prohibition).

If you scan through the entire opinion, there’s not much about the employee handbook that the ALJ did like.

A year or two ago, I might have told you to pull out your handbook, call a lawyer — preferably one with four kids and a blog — and start revising. However, with the Board about to get down with G.O.P., this opinion may end up like Vince McMahon in a hospital bed.


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