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NLRB Speaks on Employer Rules

From BWCC Member Christine Walters, JD, MAS, SHRM-SCP, SPHR, who is an Independent Consultant & Author with FiveL Company

Personally and professionally I find some (or much) of this saddening and heart-breaking.  I fear for the continuing spiral towards a near complete loss of any requirement for workplace civility, much less any ability to enforce it.  Let me explain.

On March 18th the Office of the General Counsel of the National Labor Relations Board (NLRB) issued a 30-page report (Memorandum GC 15-04) in a series of repeated attempts over the last several years to provide guidance to employers on how to draft and craft policies that will stand up to scrutiny under the National Labor Relations Act (NLRA).  You know this song.  You’ve heard me sing it before.  But here we go again (and again and again).

The report is broken into two parts.  Part I addresses employers’ rules, generally set forth in Employee Handbooks and gives examples of policy language that was found to violate the NLRA, language that did not violate the NLRA and some illustrative examples for each…well, in some cases at least. The topics covered include:

  • Confidentiality
  • Employee Conduct toward the Company & Supervisors
  • Employee Conduct towards Fellow Employees
  • Employee Interaction with Third Parties
  • Restricting Photography and Recording
  • Restricting Employees from Leaving Work
  • Conflict of Interest

The second part of the report analyzes one case against one employer that challenged roughly a dozen different policies, depending upon how you count them. Challenged topics not included in the list above were:

  • Handbook disclosure
  • Social media
  • No Distribution/No Solicitation
  • Telephones and cell phones

Time nor space nor patience permits me to address each of these here (emphasis most likely on the last).  But let me share with you what I find to be perhaps the most offensive and heart-wrenching language used by the Board in this report.  In addressing employee conduct towards supervisors the Board writes, “…a rule that requires employees to be respectful and professional to coworkers, clients, or competitors, but not the employer or management, will generally be found lawful…a rule 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.”

Really?!  A federal government agency is telling us that we need to provide context or clarification in a rule that expects ALL employees to treat all OTHER employees with respect, including managers and supervisors?  Come on, after all supervisors are employees too!  And don’t we demand the reverse?  I get employees’ Section 7 rights under the NLRA to act in concert regarding their wages, hours or other conditions of employment.  I believe employers are trying to regulate not what is said but how it’s said.  It is a sad day when we cannot insist upon civil discourse in and about the workplace that we as employers maintain.

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