Union or Not, the NLRB Has Employers (and Their Employee Handbooks) In Its Sights

NLRB-union-election-ruleHere’s something that often comes as a surprise to my clients with a non-union employee base: the NLRA (National Labor Relations Act) likely applies even without any union employees.

Yep – you read that right.

In fact, the NLRA’s application is quite broad, covering the vast majority of private employers in the United States.

And because there aren’t already enough rules and regulations that employers need to comply with (read that again, with sarcasm), the NLRB has been making things even more difficult for employers lately, paging through employee handbooks and going line by line to find potential issues. In particular, the NLRB has been taking a hard stance against employers whose handbooks set forth policies that try to zip the lips of disgruntled employees when it comes to talking about things like how much they (don’t) make and how horrible their bosses are.

While employers like to think that their employees are so happy they just Whistle (While [They] Work It) day in and day out, the reality is, no matter how often you bend over backwards for your employees, there are always gonna be some complainers out there. And employers may not always be able to do anything about it.

Case-in-point: the NLRB’s recent consideration of T-Mobile’s employee handbook.

The NLRB Administrative Law Judge found “problems” (i.e., NLRA violations) with respect to numerous provisions in T-Mobile’s employee handbook, including those that:

  1. NLRA-violationsprohibit public disclosure of the handbook;
  2. prevent employees from revealing the identities of those involved in internal investigations;
  3. limit the individuals to whom employees can complain about wage and hour issues;
  4. bar employees from speaking to the media;
  5. require employees to sign agreements that prevent them from talking about their wages;
  6. forbid disclosure of employee contact information;
  7. ban employees from badmouthing their employer or their employer’s products/services; and
  8. force employees to acknowledge in writing that they agree to comply with all of the above dreadful directives. (Again, sarcasm.)

This long, nit-picky list of handbook “problems” should give employers a good picture of what they are dealing with going forward. And probably cause them to cringe if they can picture the pages of their handbooks that prohibit these same types of activities. (Here’s a link to the T-Mobile USA, Inc. case history and decision, if you want to learn more.)

So what should employers do about this?

  • Step 1: Take a close look at your employee handbooks, particularly if your workforce is a potential target of union organizing activity.
  • Step 2: Fix potential handbook violations.
  • Step 3: If you don’t know where to begin with Step 1 or Step 2, pick up the phone and call your attorney.

Failure to do so can almost guarantee that an interested union will use any questionable handbook provision to pave the way to the NLRB and even bigger problems.

For more information on this topic, check out our recent alert about the NLRB’s Office of the General Counsel’s Report Concerning Employer Rules here.

Carmon Harvey (Bio | LinkedIn | Twitter) is a shareholder resident in our Newark and Philadelphia office. Carmon has run more than 25 marathons, which allows her to indulge in her second and third most important hobbies: eating lots of delicious food and drinking great craft beers.


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