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What’s in Your Handbook?

By Adam B. Merrill

The NLRB has increasingly scrutinized employee handbooks during the course of its investigations and challenged overbroad provisions as unfair labor practices.  A recent D.C. Circuit decision affirming an NLRB ruling on employee handbook provisions is instructive for the drafting of compliant handbooks, particularly with regard to investigation confidentiality rules, electronic communications rules, and restrictions on employee conduct during working hours.

In Hyundai America Shipping Agency, Inc. v. NLRB, No. 11-1351 (D.C. Cir. Nov. 6, 2015), the court agreed with the NLRB that three workplace handbook rules violated the National Labor Relations Act because they could be interpreted to stifle union activity and discussions of employment conditions, in contravention of Section 7 of the Act. However, the court also identified relatively simple ways to cure each of these deficiencies by more careful drafting of similar provisions. Employers would be wise to review each of these provisions and adjust their handbooks accordingly.

Investigative Confidentiality Rule

The first rule, prohibiting employees from discussing all matters under investigation by the Company, was ruled unlawful because of its over breadth in limiting the rights of employees to discuss their employment. The court’s decision, however, suggests that a rule requiring confidentiality in the context of particular types of investigations, such as investigations into sexual harassment allegations pursuant to an EEOC charge, would be permissible.

Electronic Communications Rule

The second rule, limiting the disclosure of information from the Company’s electronic and information systems to “authorized persons,” could be interpreted by “reasonable” employees, according to the NLRB and the court, to limit sharing of information about employment terms and conditions. The court identifies an easy fix, however: if the prohibition is limited to confidential information, it would likely be permissible.

Working Hours Rule

The third rule, prohibiting activities other than work during “working hours,” barred employees from engaging in union-related activities even during breaks, according to the NLRB. The court agreed, recognizing the distinction between “working time,” which includes breaks, and “working hours,” which does not. Restrictions on union activity during “working hours” are presumptively invalid; similar restrictions during “working time” are not. Employers should thus be careful to use the proper terminology in their handbooks —“working time.”