Employment eAlert: More Guidance on What Makes Employee Handbook Policies Unlawful

June 2014

Do you have employment policies that broadly forbid employees from:

• Discussing their compensation;
• Making any negative comments about their employer or management;
• Sharing any information about general employer policies and procedures;
• Taking action that threatens the smooth operation or goodwill of their employer;
• Engaging in off-duty conduct that negatively affects their employer's reputation; or
• Discussing anything about their employer's business or legal affairs?

If the answer is "Yes," you should make some changes to the policies to avoid violating the National Labor Relations Act (NLRA).

As the National Labor Relations Board recently explained when analyzing a national restaurant chain's Employee Handbook, policies that expressly restrict employees' legal right to engage in concerted activities for their mutual aid or protection, which generally includes employees acting together (including talking to one another) to improve wages or working conditions or other terms of employment, are unlawful. Policies that tend to chill employees' exercise of these legal rights are also unlawful.

Whether you are a union or non-union employer, your employees have a right to talk about their working conditions, including their managers, their pay, policies that affect working conditions and their employer and management. Any policy that broadly seeks to prohibit all such discussions will likely violate the NLRA.

If you have questions about the legality of your policies, your Employee Handbook, or any other employment law issues, please feel free to contact us.

This article was written by Elizabeth Semler, former Sussman Shank LLP Employment Law Partner. 

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