A Bell Is Un-Rung: It’s “Never” too Late to Update the Handbook

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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Regularly updating your employee handbook is not just a good practice, but it is of particular importance given the recent scrutiny of handbook language by the Acting General Counsel (AGC) of the National Labor Relations Board (NLRB). Over the past year, the AGC has made the arguably “overly broad” verbiage found in many handbooks grounds for an adverse finding, when a “reasonable” reading would “chill” employees from exercising a legally protected right, such as discussing their terms of employment with others. Typically, once the Region has received an unfair labor practice (ULP) charge and identified arguably overly-broad language (e.g. a general provision forbidding employees from talking with the news media), an adverse finding is made. Once that finding is made, the employer is left with the option of either revising and reissuing the handbook—and then issuing a notice posting to all employees or taking the matter to an NLRB hearing. But, under certain circumstances, the employer’s good faith attempt to revise the handbook may remedy the violation, even after a claim has been made and before the revised handbook has been published. Case in point:

Last winter, a client that is a nationwide provider of managed services, asked us to review its employee handbook. The handbook had been published in 2007 and, like most handbooks published during that timeframe, several of its provisions were “outdated” in light of the various memoranda promulgated by the AGC of the NLRB related to social media and protected concerted activity (PCA). Using the AGC memos as guidance, we updated the handbook and returned it to the client.

This spring, we got a call from the same client—a union had filed a ULP challenging five provisions of the 2007 handbook. Ironically, the new handbook was scheduled to be published and distributed within the next several weeks. We were concerned that the Region would find merit in several of these allegations. After all, the language in three of the challenged 2007 provisions was strikingly similar to language that the AGC had deemed “unlawfully overbroad” in his recent advice memos.

Ultimately, the Region found merit in three of the claims—but did not issue a complaint and instead conditionally dismissed the ULP (conditioned on no findings of unfair labor practices over the next six months).  

The Region found that even though the union’s claims had merit, “further Board action would not effectuate the Act.” In other words, the client’s good faith efforts to comply with the National Labor Relations Act (NLRA) were sufficient to remedy the ill effects of the violation.

A key takeaway here is that under the right circumstances, voluntary remedial action—even if well short of a formal repudiation, may be able to “un-ring the bell.” The Region noted that the client’s remedial action was effective because: (1) the new handbook provisions were lawful; (2) the new handbook contained a valid “savings clause”; and (3) the client did not have a history of labor law violations.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

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