Employee handbooks: Feds spell out what you can, can't include

FMLA, employee handbook

HR pros may want to take a closer look at their employee handbook — and ASAP.
Why? The National Labor Relations Board’s (NLRB) General Counsel just released a massive report on employee handbooks (and other relevant policies).

Both union and non-union workplaces

Specifically, the report outlined handbook content that’s lawful – and that which is likely to violate the National Labor Relations Act.
The report, which includes examples and recent NLRB decisions, applies to all employers regardless of whether or not they have union-represented employees.
In general, when handbooks contain vague or overly broad statements, employers are setting themselves up for problems.
Here are some of the major handbook areas listed in the report as well as specific examples of what the NLRB considers overly broad (i.e., potentially illegal) and what it will likely find lawful, courtesy of the folks at The Employer Handbook:
1. Confidentiality rules. The feds make it very clear that employees have a right to discuss “wages, hours and other terms and conditions of employment.”
But the feds said it’s OK to have “broad prohibitions on disclosing ‘confidential’ information” to protect “the privacy of certain business information” if certain conditions are met.
Here are two examples of language the NLRB considers overly broad:

  • Do not discuss “customer or employee information” outside of work, including “phone numbers [and] addresses.”
  • 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.

On the other hand, here’s an example of confidentiality language that is lawful: No unauthorized disclosure of “business ‘secret’ or other confidential information.”
2. Leave restrictions. Because the NLRA puts the ability to strike as one of workers’ fundamental rights, any handbook language that could “regulate when an employee can leave work” can potentially get firms in trouble, especially if the handbook contains references to “walkouts,” “disruptions” or strikes. Here are two examples:

  • 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.

This language, however, is OK in the NLRB’s eyes: Entering or leaving Company property without permission may result in discharge.
3. Workers’ conduct toward management. The Memorandum reminds firms that workers have the “right to criticize or protest their employer’s labor policies or treatment of employees.” And it highlighted a number of cases where firms’ handbook language clearly prevented workers from exercising those rights.
The NLRB considers this overly broad: “[B]e respectful to the company, other employees, customers, partners, and competitors.”
But this statement is lawful: “Each employee is expected to work in a cooperative manner with management/supervision, coworkers, customers and vendors.”
4. Employees’ conduct toward co-workers. In addition to the employee/manager relationship, the NLRB pointed out what type of language should dictate workers’ interactions with one another.
What to avoid:

  • “[D]don’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.”

What’s OK: “[T]hreatening, intimidating, coercing, or otherwise interfering with the job performance of fellow employees or visitors.”

The paid sick leave issue

While you’re reviewing the handbook, you may want to consider adding something about the growing trend of mandatory paid sick leave, if you haven’t already addressed this.
As HR Morning reported on previously, with the list of cities and municipalities that mandate paid sick leave growing each week, 79.4% of HR pros said they will be addressing this legal trend in their employee handbooks, according to a new study by XpertHR.