Decision From the NLRB: Review Your Employee Handbooks NOW

A new update by the National Labor Relations Board (NLRB) could mean you need to revise your employee handbook.

The update, issued on Aug. 2, 2023, is a significant one pertaining to employee handbooks and their impact on labor relations and workers’ rights. The new standards help determine whether employee conduct policies violate the National Labor Relations Act (NLRA).

This latest decision impacts all private-sector employers. If your policies are found to be in violation, the consequences could include federal penalties, lawsuits and more. So now is the time to review your existing policies and employee handbooks to ensure you’re in compliance.

The Importance of Employee Handbooks

Your employee handbook is a crucial document outlining the policies, rules, and expectations of your organization. It’s a guide to help employees understand their rights and responsibilities, and it sets the tone for workplace culture. It also serves as a tool to help you (as an employer) ensure the consistent application of policies and procedures.

However, over the years, the NLRB has been concerned about employee handbook provisions that potentially infringe upon employees’ rights. Of particular note is the ability to engage in protected activities under the NLRA, such as to collectively bargain, discuss workplace conditions and engage in concerted activities to improve their working conditions.

Key Highlights of the Aug. 2, 2023 NLRA Update

The update refines the guidelines for employee handbooks to ensure they don’t inadvertently infringe upon employees’ rights under the NLRA. Here are some of the key highlights:

• Clarification of Unlawful Handbook Provisions: The update provides clearer guidance on what specific handbook provisions could be deemed as unlawfully infringing upon employees’ NLRA rights. This includes language that might discourage employees from discussing wages, working conditions or terms of employment.
• Balancing of Employer and Employee Interests: The NLRB emphasizes the importance of striking a balance between legitimate employer interests and the protection of employee rights. This update encourages employers to draft provisions that address their needs without deterring employees from exercising their NLRA-protected rights.
• Examples and Best Practices: The update includes illustrative examples of employee handbook provisions that are likely to be unlawful, as well as those that should pass legal scrutiny. The aim is to provide employers with practical guidance when creating or revising their employee handbooks.

Impacted Workplace Policies

Based on the NLRB’s decision, a multitude of workplace policies are at the very least now subject to additional scrutiny. These could include the following policies:

• Restricting employees’ use of social media
• Restricting criticism, negative comments or disparaging the company’s management, products or services.
• Promoting civility
• Prohibiting insubordination
• Requiring confidentiality of investigations and complaints
• Restricting behaviors such as using cameras or recording devices in the workplace
• Restricting use of company communication tools such as email, Teams or Slack.

While the NLRB doesn’t police employers proactively, they could become aware of violations if a complaint is filed. Just one employee filing suit for termination based on one of these policies can put you in the agency’s crosshairs — not to mention the public spotlight.

Employers and HR teams should review their employee handbooks to make sure policies comply with the new NLRB standard. Consult with labor counsel, and keep an eye out for any future updates and clarifications.

Hiring an experienced human resources consulting team is also a wise move. By tracking these developments, informing you about them in real time and showing whether and how to revise your employee handbook, we can help you avoid steep financial — and reputational — consequences.

All content provided in this article is for informational purposes only. Matters discussed in this article are subject to change. For up-to-date information on this subject please contact a James Moore professional. James Moore will not be held responsible for any claim, loss, damage or inconvenience caused as a result of any information within these pages or any information accessed through this site.