Beware of Your Employee Handbook

by Sherman & Howard L.L.C.
Contact

[author: Karla Sanchez]

Recently, employee handbooks have been the subject of many National Labor Relations Board ("NLRB") complaints, particularly in cases where the employees are not represented by unions.  The NLRB has struck down handbook provisions it claims may restrict or "chill" employees' exercise of their so-called Section 7 rights under the National Labor Relations Act ("NLRA" or "Act").^  Section 7 protects the right of employees to discuss with coworkers their terms and conditions of employment and engage in other protected/concerted activities.  Few of these complaints appear to have arisen from an employee actually charging that he/she was in fact "chilled" from engaging in protected activities.  Rather, NLRB regional offices appear to be regularly reviewing employee handbooks in the course of any employee-initiated investigation.

That was exactly the case in EchoStar Technologies, L.L.C.,[1] when an employee filed a charge stemming from the employee's termination.  This charge was twice amended and by the time the case was tried, the only allegations remaining related to the language in the employee handbook.  The EchoStar decision highlights some of the sections in personnel manuals the NLRB will attack, including policies that are often taken for granted by employers. 

Disparaging Comments:  EchoStar had a policy prohibiting employees from making "disparaging or defamatory comments" about the employer, its employees and products.  The Board found the policy unlawful, with the Administrative Law Judge concluding that a "reasonable employee" would read this section to prohibit his/her rights to engage in protected activities.  For example, the Judge noted that employees are entitled to make statements concerning their employer which are derogatory, including comments that the employer overworks or underpays its employees.  The NLRB contended that only the prohibition of "disparaging" and not "defamatory" statements was unlawful.  The ALJ, however, concluded that the policy was not saved by the employer's interweaving of lawful and unlawful prohibitions. 

Contact with Media: EchoStar maintained a policy stating that employees had to receive authorization from the employer's communication department before they could communicate anything about EchoStar to the media.  The ALJ found this policy violated the Act because it did not limit this prohibition to "official acts or communications."  According to the Judge, an employee could perceive this policy to restrict any communications with the media related to the employer or his employment.

Disclosure of Confidential Information: The Judge upheld EchoStar's policy prohibiting employees from discussing or disclosing "confidential or propriety information."  The NLRB argued that because confidential information was defined to include "employee information," without providing an exception for Section 7 activities, the policy was overbroad.  The Judge disagreed, finding that the policy, when read as a whole, made clear to a reader that it dealt only with "proprietary and business confidential information."

Communications with the Government: The Judge struck down EchoStar's policy requiring an employee to notify the employer's general counsel of any government communications made to the employee concerning EchoStar.  The Judge found that this policy was overbroad, as it did not limit this restriction to government agency contact for official business purposes.

EchoStar's employee handbook contained a provision declaring that no policy or provision would be given effect if it were inconsistent with applicable law, and the Company argued that this saved the provisions.  The ALJ rejected this argument, concluding that the general savings clause did not alter his findings.  The Judge explained that no reasonable employee would reference the general disclaimer on page two of the handbook when determining whether the policies located elsewhere in the handbook impinged on the employee's Section 7 rights.

In light of rulings like EchoStar, employers should take the time now to audit and correct policies the NLRB might interpret as potentially "chilling" employee rights.



[1]EchoStar Technologies, L.L.C., 27-CA-066726, 2012 WL 4321039 (NLRB Div. of Judges, Sept. 20, 2012).


 

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.

© Sherman & Howard L.L.C. | Attorney Advertising

Written by:

Sherman & Howard L.L.C.
Contact
more
less

Sherman & Howard L.L.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.