Practice Areas

The NLRB is Dissecting Employee Handbooks as Part of its Expansion Efforts into the Non-Union Workforce

February 2014

Did you just finish revising your employee handbook or are you in what seems to be a never ending cycle of updating the handbook? Well the National Labor Relations Board (NLRB) is providing yet another reason to look it over at least one more time.

Given the steady decline of the union workforce, and in an effort to remain relevant, the NLRB has been making efforts to expand the scope of its operations. Over the past three years all of the buzz and attention regarding the NLRB's expansion efforts focused on social media policies. Although still important, this emphasis has had the unfortunate effect of distracting some employers, thereby leaving other commonplace and traditional employee handbook policies unrevised or unchanged. The NLRB is now capitalizing on that distraction by closely scrutinizing a variety of employee handbook policies.

But wait, we do not have a union shop, so we do not have to worry about our policies being reviewed by NLRB, right? Wrong. Many non-union employers make this common mistake but nothing could be further from the truth. Rather, the NLRB acts to enforce the National Labor Relations Act (NLRA), and that law applies with equal force to both union and non-union employers by, among other things, protecting employees' rights to engage in protected concerted activity. Although any policy could be examined, according to recent NLRB decisions those highly subject to examination are:

  • Confidentiality policies
  • Social Media policies
  • Non-disparagement policies
  • Wage discussion policies
  • Disciplinary policies
  • Employment-at-will disclaimers
  • Reporting mechanisms
  • Dispute resolution policies
  • Non-union and non-solicitation policies.

The NLRB is looking to see if these policies are written in a manner might have a "chilling effect" on an employee's desire to, among other things, discuss the terms and conditions of employment; bring group complaints; and/or induce group action, all of which may be categorized as "protected concerted activity" under the NLRA.

Given the NLRB's foreseeable focus on the predominately non-union workforce, employers are advised to revisit their employee handbook and employment policies. The attorneys at Wessels Sherman can assist you in that review because they understand that a well-crafted employee handbook not only accounts for policies and guidelines on pay practices, discipline, equal employment opportunity and anti-harassment/discrimination, it is also drafted and implemented in a way that mitigates an employer's exposure to a variety of laws, including the NLRA.