If you have an employee handbook you have to read this…

April 2, 2015 at 9:27 am 1 comment

Whether or not you work in a unionized workplace, the National Labor Relations Board has used an  expansive view of federal law to insert itself  into , and implicitly attempt to micromanage, the American workplace in a way that is directly impacting your credit union operations.

Those of you who think I’m exaggerating and\or those of you whose job it is to manage employees would be well advised to review the NLRB’s recent  guidance  outlining language that can and can’t be in workplace handbooks(http://www.nlrb.gov/reports-guidance/general-counsel-memos Report of the General Counsel Concerning Employer Rules).  On the one hand the memorandum is an attempt to provide a concise compendium of handbook dos and don’ts based on its prior rulings;  on the other hand  it  reads like an  “April  Fools” joke.   Unfortunately it isn’t.

First, the NLRB correctly reminds us that handbook language violates federal law when “employees would reasonably construe the rule’s language to prohibit” concerted activity be it in a unionized or non-unionized workplace.  The problem is that the mythical  employee the NLRB is protecting apparently  has a law degree, is utterly devoid of commonsense, behaves like an out-of-control  teenager who has just been told  she has  to be home by 11:00PM   and  works for the NLRB.  No other workplace could  function in the workplace as pictured by the Board

In the-“ You can’t make this stuff up category” the NLRB explains that  a workplace policy “that prohibits employees from engaging in. “disrespectful,” “negative,” “inappropriate,” or “rude” conduct towards the employer or management, absent sufficient clarification or context, will usually be found unlawful…  Moreover, employee criticism of an employer will not lose the Act’s protection simply because the criticism is false or defamatory.”

Apparently the NLRB doesn’t think your average employee has a rudimentary grasp of the English language or can be expected to have the etiquette  of a kindergartener.

But wait there’s more.  Did you know that a policy banning “Disrespectful conduct or insubordination, including, but not limited to, refusing to follow orders from a supervisor or a designated representative.” Or another prohibiting “Chronic resistance to proper work-related orders or discipline, even though not overt insubordination will result in discipline.” Is illegal?

I want to give the NLRB the benefit of the doubt.  Maybe it is so committed  to protecting the Norma Rae’s of the world chafing under  employer misconduct  that it wants to give   complaints about  management malfeasance   the widest possible protection. The problem is that its prohibitions also prohibit language intended to regulate employee to employee civility. For example it  found the following policy to also violate the FLSA.

“Material that is fraudulent, harassing, embarrassing, sexually explicit, profane, obscene, intimidating, defamatory, or otherwise unlawful or inappropriate may not be sent by e-mail. …”We found the above rule unlawful because several of its terms are ambiguous as to their application to [concerted] activity—”embarrassing,” “defamatory,” and” otherwise . . . inappropriate.” We further concluded that, viewed in context with such language, employees would reasonably construe even the term “intimidating” as covering Section 7 conduct”

Finally even where the NLRB tries to be reasonable the distinctions it draws between lawful and unlawful conduct is so paper-thin that a properly designed  handbook  needs more qualifiers than a  Viagra  Ad.   For example the following language is unlawful  “ Do not discuss “customer or employee information” outside of work, including “phone numbers [and] addresses.” But this policy is legal “Misuse or unauthorized disclosure of confidential information not otherwise available to persons or firms outside [Employer] is cause for disciplinary action, including termination.”

 

Entry filed under: HR, Legal Watch, Regulatory. Tags: , .

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Authored By:

Henry Meier, Esq., General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association.

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