Does your handbook say this … ? If so, it's time for a rewrite

Christian Schappel
by Christian Schappel
3 minute read

One federal agency continues to take the shredder to common, and seemingly harmless, employer policies. And this time, it may have made its most head-scratching move of them all. 
The National Labor Relations Board (NLRB) just issued another ruling that all employers — not just unionized shops — have to abide by, according to federal law.
Cue the facepalms. discourged 2

You can’t tell employees to ‘play nice’

After a union cried foul about some of T-Mobiles policies, the NLRB dug into the telecommunication company’s employee handbook and rules.
And to no one’s surprise, the NLRB didn’t like what it saw.
For example, it said this policy was illegal:

“[T-Mobile] expects all employees to behave in a professional manner that promotes efficiency, productivity, and cooperation. Employees are expected to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers, and management.”

What’s wrong with essentially telling employees to “play nice” like this?
According to the NLRB, the rule violated the National Labor Relations Act (NLRA), which says employees must be free to engage in “concerted activities” — like discussions around working conditions.
It said T-Mobile employees could construe the clause as restricting controversial discussions — including those about unions and organized labor — because T-Mobile might not view such discussions as “positive.”
As a result: T-Mobile must now rewrite that portion of its employee handbook and make employees aware of the changes.

Down goes another policy

This is just the most recent in a long line of relatively common and — in many cases — seemingly innocuous employer policies the NLRB has shot down in the name of protecting employees’ speech rights.
In a nutshell, if there’s even the slightest chance an employer policy could keep employees from talking about unions, the NLRB will deem it illegal by taking an extremely broad view of the NLRA’s employee protections.
The most common consequences for employers with policies deemed illegal:

  • rescinding such policies and rewriting them
  • posting notices of the changes in a public location
  • rescinding any disciplinary action against employees for violating those policies (including rehiring any terminated employees with back pay), and
  • clearing the names of offending employees.

Other common policies the NLRB has axed recently include:

The U.S. Chamber of Commerce has taken such offense to the NLRB’s broad view of the NLRA’s protections that it recently published a report entitled, Theater of the Absurd: The NLRB Takes on the Employee Handbook. The report reviews cases in which the NLRB has negated a wide range of seemingly sensible (at least to employers and business groups) workplace rules.
This is not the first time T-Mobile caught the ire of the NLRB. It recently came under fire for having a policy that required employees to keep information that was shared or discussed during internal investigations confidential. Again, the NLRB said the policy infringed upon worker’s rights under the NLRA to participate in discussions about working conditions.
Cite: T-Mobile USA Inc. and Communications Workers of America, NLRB Div. of Judges