By Michael Grubbs
Over the past few years, the National Labor Relations Board (“NLRB”) has increasingly focused on employer handbooks and policies as part of employee protections under the National Labor Relations Act (“NLRA”). This focus impacts both non-union and unionized workplaces. As the NLRB has admitted, this effort is simply part of the NLRB’s goal to remain “relevant’ to the modern and increasingly non-union workforce. As a result, increased NLRB scrutiny over employer handbooks and policies is a legitimate concern for all employers.
The NLRB’s recent focus on employee handbooks is illustrated in Macy’s and UFCW, Local 1445. The Administrative Law Judge ruled that provisions in Macy’s handbook restricting the use of employee information, barring employee use of the company’s logo and intellectual property, and requiring employees to consult with the company before participating in a government investigation violated Section 7 of the NLRA, which prohibits employer interference with employee rights to organize and engage in “protected and concerted” activities.
Several handbook provisions limiting the disclosure and release of employee and vendor identifying information (e.g., names and home and office contacts) were also found to be over broad because they prevented employees from engaging in protected activity, such as talking to each other about wages and terms of employment or soliciting each other to join a union.
The ALJ also found that a provision prohibiting employees from using the Macy’s logo was unlawful because it unlawfully prohibited employees from using an effective communication tool. In addition, the handbook provision requiring employees to notify company representatives before participating in a government investigation was unlawful because it chilled employee participation.
Finally, the ALJ rejected Macy’s argument that its “safe harbor” or “savings clause” rescued the otherwise unlawful policies. The savings clause, which specifically stated that the handbook “is intended to comply with all federal state, and local laws, including, but not limited to … the National Labor Relations Act, and will not be applied or enforced in a manner that violates such laws” was deemed too broad to be effective. Macy’s was ordered to rescind and revise each provision found to be unlawful.
The decision in Macy’s should concern all employers. The handbook provisions deemed unlawful in Macy’s, or some variation thereof, are often found in handbooks that are not regularly revised for compliance with NLRB rulings. Employers should review their policies governing confidentiality, employee conduct toward coworkers and management, employee use of company logos, email access policies, and at-will employment statements to ensure that such policies comply with the NLRA and the evolving NLRB guidance.
By Michael Grubbs