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NLRB Issues Advisory Opinion Regarding Handbook Policies

Published:  June 14, 2018

 

The National Labor Relations Board recently issued an Advisory Opinion regarding common Employee Handbook polices. The Advisory marks a change in NLRB interpretation of common handbook policies. As employers are aware, the NLRB reassessed its standards for when a handbook policy violates Section 8(a)(1) of the National Labor Relations Act in The Boeing Company case. Section 8 of the NLRA governs employee rights to engage in concerted activity. Prior to The Boeing Case, the NLRB could find that a handbook policy violated the NLRA if it had a “chilling effect” on the right of employees to engage in concerted activity. The “chilling effect” standard caused frustration to employers as the NLRB could find a violation of the NLRA without a potential violation of the policy by an employee ever occurring.

            The new Advisory, issued on June 6, 2018, makes clear that ambiguities in a handbook policy will no longer be interpreted against the employer and that generalized policy provisions should not be interpreted as banning all activity that could conceivably be included. The full text of the Advisory can be read here. 

            In particular, this new Advisory affects Handbook Policies containing (1) Civility Rules, (2) No Photography Rules, (3) No Recording Rules, (4) Rules against Insubordination, (5) Non-cooperation or On the Job Conduct that adversely affects operations, (6) Disruptive Behavior rules, (7) Rules protecting Confidential, Proprietary, and Customer Information or documents, (8) Rules against Defamation or Misrepresentation, (9) Rules against Using Employer Logos or Intellectual Property, (10) Rules requiring Authorization to Speak for Company, and (11) Rules banning Disloyalty, Nepotism or Self-Enrichment. Generally, these rules are now lawful due to a balancing test used by the NLRB that weighs the impact on the employee’s NLRA rights against the legitimate business justifications of the policy.

            However, employers will want to be aware that certain handbook policies are still prohibited by the NLRB. Chief among those prohibited policies are confidentiality rules regarding wages, benefits or working conditions and rules against joining outside organizations or voting on matters concerning the employer. Massachusetts employers will especially want to be aware of confidentiality rules regarding wages, benefits and working conditions as those policies will also be prohibited by the amendments to the Massachusetts Equal Pay Act, which go into effect July 1, 2018.

 

If you have any questions regarding the NLRB’s Advisory Opinion, the Massachusetts Equal Pay Act, or any other aspect of labor and employment law, please contact the attorneys at Royal, P.C.

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