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NLRB finds Employer Handbook violates NLRA - Again!

By Daniel J. Burnick • Friday, September 2, 2016

The National Labor Relations Board continues to focus on Employer Handbooks that contain policies and procedures that violate the National Labor Relations Act.  The National Law Review reported on an Administrative Law Judge's decision finding three provisions of an employer handbook illegal.  

The first provision prohibited conducting personal business on company property: 

“You are expected to use BCD's property only for business purposes.  Personal use is generally prohibited of BCD's supplies or equipment, such as telephones, fax machines, computers, or repair equipment and supplies. … As part of this policy, Team Members are reminded they should only be on BCD's property when conducting BCD's business. … Team Members are to conduct only BCD business while at work.  Team Members may not conduct personal business or business for another employer during their scheduled working hours.”

The ALJ found this provision to be in violation of Section 7 because it was overly restrictive, would prohibit communications about unions or terms and conditions of employment and would prevent employees from engaging in protected activity during lunch and other breaks. 

The second provision found illegal addressed solicitation and distribution:  “Any and all solicitations or distributions must cease immediately if the intended recipient expresses any discomfort or unreceptiveness whatsoever.”  The ALJ decided that this provision violated the NLRA because the Act permits employees to solicit and distribute literature during non-work time and in non-work areas.

Finally, the ALJ found the following social media policy illegal under the NLRA:

“BCD recognizes the importance and prevalence of electronic media in our work and personal lives.  To assist in addressing employment related concerns . . . . the following Social Media Policy guides your actions. … If you publish content to any blog or website and it has to do with work, use a disclaimer, such as ‘The postings on this site are my own and do not represent my employer's positions'. … If you do publish content regarding BCD, always identify yourself – State your name and (when relevant) your position at BCD. … Don't cite or reference guests, vendors, clients, or Team Members without their approval. … When posting photos, always obtain approval and never use photos gathered throughout the course of your career at BCD.  Photos taken or obtained at BCD are the sole property of the company and are not permitted to be used for personal use.  Don't provide confidential, proprietary information and/or trade secrets.”

These provisions were found to restrict the free exercise of the employees' rights to discuss terms and conditions of employment, including prohibiting emails complaining about work related conditions and restricting the use of videos, photos and audio recordings that could be used to engage in protected activity.

Practice pointer.  The NLRB continues to aggressively pursue policies and procedures put in place by employers.  It is imperative that employers continue to review and revise their Handbooks, policies and procedures on a regular basis.  For those in the Birmingham area, I will be presenting at a Sterling Education Services seminar on September 20 concerning social media in the workplace, including NLRB issues.  For those in the Huntsville area, I will be presenting the same topic on November 2.  Please feel free to register at either of these seminars: they will be educational and entertaining.  If you plan on attending, please let me know, and I can provide you with a $50 discount.  

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