And the beat goes on: The National Labor Relations Board has stuck its nose into another non-union organization’s employee handbook.
The latest case involves Hills and Dales General Hospital in Cass City, MI. The employer had issued an employee, Danielle Corliss, a written warning for a Facebook comment she posted in response to remarks from a former hospital employee who had been fired for “playfully throwing a yogurt cup at her boss” (the fired employee’s description of the incident).
Holy s–t rock on [fired employee]! Way to talk about the douchebags you used to work with. I LOVE IT!!!
That warning sparked a complaint to the Labor Department.
At issue were three paragraphs of the hospital’s Values and Standards Behavior policy, which hospital officials testified had been adopted about a decade ago in response to “a poor work environment,” according to the NLRB ruling. “Among other problems, hospital departments were not cooperating with each other, and employee relationships were suffering due to ‘back-biting and back stabbing’. As a result, employee satisfaction was low, employees were looking for other job opportunities (outside the hospital) and patients were seeking health care in other hospitals.”
Seems like a sensible approach to a thorny situation. But the NLRB turned thumbs down on these three segments of the Values and Standards Behavior Policy:
“We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other.”
“We will not engage in or listen to negativity or gossip. We will recognize that listening without acting to stop it is the same as participating.”
“We will represent Hills and Dales in the community in a positive and professional manner in every opportunity.”
The NLRB’s position: Each of the three directives could make employees think twice about engaging in “protected concerted activities” — things like talking about managers, working conditions, and, yes, organizing unions.
The Hills and Dales case is just the latest in which the NLRB took employers to task for common provisions of employee handbooks. Here’s an overall rundown, courtesy of Lynn C. Outwater, senior partner at Jackson Lewis LLP:
1. At-will statements
Many HR pros were stunned when the NLRB began going after company handbooks — especially because the language that the NLRB was taking issue with was the same language that employment lawyers had been urging firms to use for years.
The issue: The NLRB claimed that certain at-will statements could be construed by employees to mean that staffers couldn’t join a union without fear of altering their employment status.
So what qualifies as a lawful at-will statement? Use this write-up, courtesy of Outwater:
Nothing in this [Handbook] changes this at-will relationship, guarantees you a benefit, creates a contract of continued employment or employment for a specified term, or any contractual obligation that conflicts with the [Employer’s] policy that the employment relationship with its employees is at-will.
No representative of the [Employer] other than a[n Employer] executive has the authority to enter into any agreement for employment for a specified duration or to make any agreement for employment other than at will. Any such agreement that changes your at-will employment status must be explicit, in writing, and signed by both a[n Employer] executive and you.
2. Confidentiality in investigations
Confidentiality during workplace investigations has become the norm for almost every company. But the NLRB says that the mere suggestion that an employee can’t communicate with fellow staffers could violate the National Labor Relations Act.
That said, it can be legal, under some circumstances, to require confidentiality during an investigation, depending on:
- the severity of the allegation
- whether a person needs protection against retaliation
- whether protection against destruction of evidence is required
- whether any testimony is in danger of being fabricated
- whether there is a realistic need to prevent a cover up, and
- whether to particularize the instruction.
3. Social media policies
Cases like Hills and Dales, among others, offer some guidance on what employers should avoid in their handbooks:
- telling employees that if they are in doubt about whether to post something, “DO NOT POST,” but rather check with company’s attorney or legal department.
- a policy that suggests that employees not “pick fights” online and to communicate in a “professional tone.”
- advising employees that they’re “encouraged to resolve concerns about work by speaking with co-workers, supervisors or managers.”
- telling employees that they can’t publish “material non-public information” or “confidential or proprietary” information online, and
- prohibiting employees from making “disparaging or defamatory comments.”
So where should HR go from here? Four tips:
- Review employee handbooks and other workplace policies NOW to ensure current policies are lawful in light of recent NLRB actions
- Keep an eye out for legal pitfalls arising in light of NLRB’s stepped-up policing efforts:
- Avoid overly broad provisions that could be reasonably construed to prohibit protected conduct
- Consider adding a specific disclaimer limiting the policy provisions so that they don’t hinder employees’ right to engage in protected concerted activity – but this isn’t sufficient on its own
- Review social media and other policies regularly in light of changes in technology and in the law, and
- Conduct executive/management training.