NLRB Issues Decisions on Handbook Policies

The National Labor Relations Board (NLRB) considered whether the employer’s following work rules were lawful under the National Labor Relations Act: (1) a policy prohibiting insubordination, neglect of duties or other disrespectful conduct, including refusal to perform work or comply with a supervisor’s instructions; (2) a policy prohibiting solicitation or distribution of literature without management or HR approval; (3) a policy prohibiting conduct not in the best interest of the company; and (4) a prohibition on the use of company supplies or equipment, including email, for solicitation and distribution. The NLRB determined that the first rule was lawful because employers have a legitimate and substantial interest in preventing the identified behaviors and expecting employees to perform their work and follow instructions. The others were found to be unlawful because they banned protected activities. The solicitation and distribution rule violated employees’ well-established rights to solicit during non-work time and to distribute literature during non-work time and in non-work areas. The reputational rule impacts employees’ rights to engage in protected concerted activity that could negatively impact an employer’s reputation, such as strikes, protests, boycotts, and other “public expressions of workplace dissatisfaction.” And finally, the use of company equipment rule was unlawful to the extent it restricts employees’ rights to use an employer’s email system during non-working time to engage in protected communications. We recommend all employers have SESCO review their Employee Handbook on annual basis to ensure compliance with all federal and state laws.