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Employee Handbooks – You Can Be Your Own Worst Enemy

Category: General HR

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janawoelfelHopefully you have heard by now that Employee Handbooks can be your friend. They give you an opportunity to set forth policies, procedures and avoid confusion about what you expect from employees. That sounds reasonable, right? Not so fast. Some policies, even policies that do nothing more than state the applicable state law on a subject, can land an employer in hot liability waters.

For those who don’t closely follow decisions of the National Labor Relations Board (NLRB), thinking that it doesn’t affect them as non-union shops, you are in for a rude awakening. The Acting General Counsel of the NLRB, Lafe Solomon, has begun broadly interpreting Section 7 of the National Labor Relations Act (NLRA) to include almost any action which could conceivably be construed to chill employee’s rights to engage in concerted activity as unlawful. Yes, I intended to use the word “conceivably” and for once I am not dripping with sarcasm. I meant it.

By now, most employers understand that the NLRB protects employees who get together to complain about their pay, their benefits or how management treats them. I still occasionally run across policies in Employee Handbooks which advise employees to keep all compensation terms confidential. However, such policies have long exposed employers to a NLRB complaint, even when the workplace is not unionized. It is not a reach to conclude that a bald-faced prohibition on employees discussing compensation falls within the Section 7’s protection of employees discussing the terms and conditions of their employment. But, sometimes it isn’t so clear that the policy was intended to proscribe discussion of the terms and conditions of employment.

For example, what about a policy which forbids employees from posting “confidential guest, team member or company information” on social media? Unfortunately, this language has been construed by the NLRB’s Acting General Counsel to be so broad and vague as to fall within Section 7’s protections of employees’ ability to discuss their working conditions. While that may seem like a stretch to many employers who rely on plain-language and common sense to guide their decisions, it was enough for the NLRB to find a violation.

In the past 9 months, the NLRB has issued three memos to clarify what an employer (union or not) may do in the social media context without potentially violating employee’s rights. Specifically the Operations Management Memo describes several cases involving social media policies. In six of the seven cases the NLRB found some portion of the social media policy to be unlawful. Not long before that, the NLRB provided memos in August 2011 and January 2012 describing discharge cases arising out of an employee’s termination for content posted on Facebook.

But that’s not the least of it.

Earlier this year, the NLRB issued an opinion that a policy that requires employees to acknowledge their at-will status could be chilling on an employee’s Section 7 rights to engage in concerted activity. What!?!!? That’s right, the NLRA’s Acting General Counsel has taken the position that an acknowledgement in a Handbook that employment was at-will and that status could not be modified except in a writing, signed by management, violated Section 8(a)(1) of the NLRA because it would chill an employee’s Section 7 right to engage in concerted activity. What, pray tell, were the offending provisions, found by the NLRB to be “overly broad, discriminatory, and coercive”? See below and tell me whether your Employee Handbook includes anything of the sort:

• “I understand my employment is ‘at will.’”
• “I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me” and Hyatt’s president or executive vice president/COO.
• “[T]he at-will status of my employment… can only be changed in  writing” signed by the employee and one of the two Hyatt executives.

Texas has long applied the default rule of at-will employment, meaning that either party to the employment relationship can terminate the relationship at any time for any reason. Many jurisdictions do the same. But the NLRB has taken the position that having an employee confirm that he understands he is employed at-will is a violation of the NLRA. Lest you think this was an isolated incident, you should know that the Acting General Counsel has announced to more than one group across the nation, including the Connecticut Bar Association earlier this month, that the “next big enforcement focus will be on employers’ “at-will” statements within employee handbooks.

I kid you not.

Get ready for it or risk being hoisted on your own petard.





Jana Woelfel is a board certified labor and employment lawyer at STRASBURGER & PRICE, LLP.  Jana is experienced in a wide variety of labor and employment issues, including representing management in anticipating and responding to all types of employment issues, including litigation, compliance and policy formulation with respect to federal employment laws, including Title VII, ADA, ADAAA, ADEA, Pregnancy Discrimination Act, FLSA, FMLA, USERRA, Section 1981, WARN, COBRA, GINA, CFAA, FCRA, as well as their state counterparts.  Jana is also experienced in employment issues unique to certain industries, including MTSA/TWIC, Jones Act discrimination and wrongful termination and DOT overlap with select employment laws.

In addition to providing advice and counsel to employers who are beginning to face HR issues, Jana counsels HR professionals and senior management in navigating complex employment issues.  She has experience negotiating employment contracts, noncompetition and nondisclosure agreements, preparing employment handbooks and HR policies, including Wellness Plans, developing affirmative action plans and provides advice regarding enforcement of leave policies, termination procedures and pay practices.

Jana is experienced both in conducting external investigations and assisting companies in conducting internal investigations, into allegations of harassment, discrimination, retaliation, as well as other professional misconduct, including embezzlement, kickback schemes, fraud, and breach of fiduciary duty.

Jana has experience defending claims of employment discrimination, harassment and retaliation, both before the appropriate administrative agencies and in court.  Jana has also prosecuted and defended multiple TROs and Temporary Injunctions to enforce noncompete and nonsolicitation agreements


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