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Recent NLRB rulings mean it’s time to update your employee handbook

May 8, 2015

The National Labor Relations Board (NLRB) recently has given increased attention to policies adopted by non-unionized employers. The NLRB has declared that seemingly routine provisions pertaining to confidential information, social media, employee interaction with the media, office decorum, etc., are unlawful because employees would reasonably construe the language to restrict protected concerted activity under the National Labor Relations Act.

The NLRB has taken an aggressive approach against blanket prohibitions and overly broad language contained in employee handbooks, contracts and policies. Just last week, the NLRB in Boch Imports, Inc. found unlawful several provisions of the employer’s handbook that: 

  1. required employees to identify themselves when posting comments online about the Company or policy issues; 
  2. prohibited employees from using the Company logo in any manner; and 
  3. prohibited employees who have contact with the public from wearing pins, insignia, or other message clothing.

The NLRB reasoned that employees would reasonably interpret the disputed provisions to restrict or prohibit protected concerted activities.1

The NLRB’s finding in Boch Imports, Inc. is consistent with this developing trend. Specifically, the NLRB recently has found in multiple cases that the following handbook provisions would reasonably be construed to restrict protected concerted activities:

  1. a policy precluding employees from making “negative comments about our fellow team members, coworkers, managers, etc.”;  
  2. a policy requiring employees to “represent the Company in the community in a positive and professional manner in every opportunity”;2   
  3. a policy advising employees not to “engage in or listen to negativity and gossip.”  
  4. an “internet blogging policy” prohibiting “inappropriate discussion about the company, management, and/or coworkers on social media”;3   
  5. a policy prohibiting employees from using an employer’s email system for non-work related messages;  
  6. a policy advising employees not to “contact the media” and “contact or comment to any media about the company unless pre-authorized by Public Relations”;5

As a result of these decisions, and other decisions like these, provisions that were once considered standard policies are now being found illegal.

Given the recent focus of the NLRB, it is important that employers review handbooks, contracts and internal policies. Employers should pay particular attention to policies concerning social media, interaction with the media, confidential information and office decorum as these are areas of particular interest for the NLRB.

Honigman will continue to monitor and inform you of developments in this area. In the meantime, please contact one of Honigman’s Labor and Employment attorneys if you have any questions or would like assistance reviewing your policies. 

362 NLRB 83 (April 30, 2015),
2 See Hills & Dales General Hospital, 360 NLRB 70 (April 1, 2014).
3 See Triple Play Sports Bar & Grille, 361 NLRB 31 (August 22, 2014).
4 See Purple Communication, Inc. 361 NLRB 126 (December 14, 2014).
5 See DirectTV, 359 NLRB 54 (January 25, 2013).

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