The NLRB's War on Employee Policies

 {Before skipping this post because you don’t have a union, remember that the National Labor Relations Act (NLRA) applies to employers without unions too.  You can read about the application of the NLRA to non-union employers here.}

War might be an extreme description, but the NLRB has been issuing decisions that declare run-of-the-mill employee policies as unlawful.  For example, earlier this month the NLRB determined that an employer’s conduct policy was unlawful.  The unlawful provisions of the policy stated that “employees will not make negative comments about our fellow team members”, “employees will represent [the employer] in the community in a positive and professional manner in every opportunity”, and “employees will not engage in or listen to negativity or gossip”.  What’s wrong with prohibitions against gossip and being rude?  Well, the NLRB found that the prohibitions might discourage employees from exercising their rights under the NLRA.  It’s not that the employer actually disciplined anyone for engaging in protected rights it’s that the employee might believe that she can’t engage in protected conduct.

Other policies that have been under attack include confidentiality policies, social media policies, dress code policies, confidentiality during workplace investigations, and at-will employment policies.

Before throwing out all your policies and handbooks and declaring anarchy at the workplace, remember that the NLRB isn't prohibiting you from having policies.  It is requiring that the policies you have are narrowly tailored and specific about the type of conduct you expect from your employees.  Instead of pitching the policies, have them reviewed to ensure that you aren't unknowingly violating the NLRA (or any other laws!)

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