What You Can't Say in an Employee Handbook


Recent decisions by the National Labor Relations Board regarding employee handbooks should prompt human resource leaders to review and possibly revise their own handbooks, as well as handle social-media disciplinary issues more thoughtfully, labor-law experts say.


Thursday, October 11, 2012
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It may be time for HR leaders to update their employee handbooks, as even seemingly appropriate policy statements contained within them could place employers in violation of federal labor law, according to a few recent National Labor Relations Board decisions.


A handful of restrictions and rules -- many of which are standard in employee handbooks across the country -- may be considered to impede an employee's protected rights, as indicated by a Sept. 20 decision by an NLRB administrative law judge.


According to a New York judge's decision, EchoStar Corp.'s social-media policy -- which prohibited employees from making  "disparaging or defamatory comments about EchoStar, its employees, officers, directors, vendors, customers, partners, affiliates, or . . . their products/services" -- was out of bounds and violated employees' rights. The case follows a recent trend in board decisions that any published policy that could be considered to affect employees' rights to freely discuss their terms and conditions of work -- online or otherwise -- is a violation of the National Labor Relations Act.


Employers need to pay close attention to the recent cases as well as reports from the board's general counsel, according to the NLRB's Public Affairs Director Nancy Cleeland.


"It's another indication of how the board will view these issues," she says, adding that the board's general counsel recently issued three reports with guidelines on social-media policy. (The reports are available here, here and here.)


The board issued decisions on two cases in September that likely will reshape social networking policy for careful employers. In the first, regarding Costco Wholesale Corp., the board found that employees could reasonably interpret the company's email and technology policy as a violation of their rights. The policy stated that: "Employees should be aware that statements posted electronically (such as online message boards or discussion groups) that damage the Company, defame any individual or damage any person's reputation, or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment."


The second, issued just a few weeks later, found that a Chicago-area BMW dealership was in the right to fire an employee over an individual Facebook update he posted poking fun at a car accident at an adjacent Land Rover dealership.  The salesman posted pictures of the crash on his Facebook page, with the caption: "This is your car: This is your car on drugs." Notably, the decision also found that a "courtesy" rule in its employee handbook was unlawful because it could hamper an employee's right to criticize working conditions. The dealership's handbook rule mandated that:  "Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership."


Law experts say these developments represent the board's take on handbook provisions and should prompt human resource leaders to review and revise company policies and also to handle social-media disciplinary issues more thoughtfully in the future.


"The EchoStar ruling, and the NLRB's related recent Costco Wholesale Corp. and Knauz BMW decisions, should sound a warning bell to HR executives," says Sonya Rosenberg, a labor and employment attorney with Chicago firm Neal Gerber Eisenberg, "that the NLRB is looking at social media and related handbook policies closely, and may well find seemingly well-intentioned, reasonable policy provisions to be unlawful, if they could reasonably be interpreted as having a chilling effect on the employees' right to freely discuss their terms and conditions of work."


HR leaders will have to find the balance between implementing policies that offer a level of protection for their companies without crossing the line into policies that have been recently found to be unlawful, she says.


"Tread carefully," she says. "Consult with counsel to review and revise your policies; train your managers so that they know how to respond to, investigate and handle social media-related workplace issues appropriately; and avoid knee-jerk reactions to questionable or offensive Facebook posts by employees."

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Peter Gillespie, an attorney in the Chicago office of Fisher & Phillips, warns employers to resist the urge to draft social-media policies that are too broad. Any all-encompassing or catch-all policy regarding social-media comments by employees is likely to be dangerous, he says.


"Employers need to be careful to prepare guidelines for employees relating to acceptable conduct on social media that would not be misinterpreted as limits on their employees' right to discuss workplace conditions or to organize in ways that are protected by the National Labor Relations Act," Gillespie says.


The board, he says, appears to be erring on the side of caution by declaring policies invalid when they use broad and sweeping terms that could possibly be misconstrued as prohibiting employees from airing legitimate concerns about the workplace. 


"So, use specific language that addresses the company's well-recognized, legitimate concerns," he says, "such as prohibiting harassment and discrimination rather than broader prohibitions, such as not making statements that could cast the company in a 'negative manner.' "


Even an employee's perception of a published rule can affect its lawfulness. The recent decisions show that if an employee could "reasonably construe" a policy to impede their protected rights to discuss workplace terms and conditions, it violates federal law. Gillespie says that factor should play a role as company officials update and revise handbooks.


"Try to provide examples of conduct that the company is concerned about preventing, so that there is less of a risk that someone would misconstrue a handbook provision to prohibit conduct protected by the National Labor Relations Act," he says, adding that the decision from the car dealership case is a refreshing sign that employers should not feel as if they have no control over their companies' images in the social-media realm.


"The guidance from the NLRB remains somewhat unclear, which makes it difficult to predict whether certain provisions would be considered to be a problem," he says.


"This does not mean that employers cannot discipline employees for engaging in misconduct on social-media sites," he says. "It simply means that employers need to be careful when warning employees in advance about the company's concerns in this area."


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