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Friday, July 13, 2012

Top Six Illegal Policies In Your Employee Handbook

Your employee handbook contains lots of policies and procedures you’re supposed to read and follow. But many handbooks contain policies the National Labor Relations Board (NLRB) considers illegal. NLRB is usually thought of as the agency that regulates all things union: elections, collective bargaining agreements, and unfair labor practices, to name a few. But I bet you didn’t know that they also probably regulate your employer unless you work for the government. That’s right: whether or not your workplace is unionized, the National Labor Relations Act (NLRA) applies to just about every private workplace.

Many employee handbooks contain policies that violate Section 7 of the NLRA, which says: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.” NLRB has a new web page that describes its enforcement efforts regarding concerted activities of employees.

Here are just some of the policies NLRB considers to be illegal that may well be in your handbook:

At-Will Employment: Your handbook probably says your employment is at-will. But in a recent complaint the NLRB filed against Hyatt Hotels Corporation, the NLRB found that an acknowledgement in the handbook saying that the only way to change at-will employment was by a written statement signed by the employee and a Hyatt officer was so broad that it implied that unionization was futile. The provision is probably similar to your company’s at-will policy:
I understand my employment is "at will." This means I am free to separate my employment at any time, for any reason, and Hyatt has these same rights. Nothing in this handbook is intended to change my at-will employment status. 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 either Hyatt's Executive Vice-President/Chief Operating Officer or Hyatt's President.

In order to retain flexibility in its policies and procedures, I understand Hyatt, in its sole discretion, can change, modify or delete guidelines, rules, policies, practices and benefits in this handbook without prior notice at any time. The sole exception to this is the at-will status of my employment, which can only be changed in a writing signed by me and either Hyatt's Executive Vice President/Chief Operating Officer or Hyatt's President.
Arbitration: Many employers have policies requiring employees to arbitrate disputes with the company. However, if the company policy says you are waiving your right to a class action, or if it otherwise prohibits employees from filing a NLRB complaint, NLRB says it violates the law.

No Discussion of Wages: Employers try to prohibit employees from discussing and comparing their wages. But prohibiting discussion of wages violates the NLRA. Employees must be allowed to discuss working conditions, including wages. That’s a really important right if, for example, you think you’re a victim of discrimination.

Nondisparagement: Does your company say you aren’t allowed to say negative things about the company, whether online or otherwise? Again, this probably violates your right to discuss working conditions.

Confidential Information
: Most companies have a policy that you must keep confidential information confidential. But if that prohibition keeps you from sharing personnel information, revenues, expenses or training materials, it may also violate your right to discuss working conditions.

Social Media: If the company social media policy says you aren’t allowed to discuss or disparage the company in social media, that may well violate your right to complain about working conditions with coworkers. There have been a slew of cases where NLRB has recently found illegal firings due to Facebook postings and other social media issues. Policies that prohibit “offensive,” “demeaning,” or “inappropriate” comments are likely overbroad. Some states have passed laws against demanding your social media passwords, and there's federal legislation pending as well that may protect you from this type of intrusion.

So what do you do if you think your employer’s policies violate the law?


Your first step is to contact your regional office of the National Labor Relations Board. If they believe your employer is violating the law, they can talk you through filing a Charge Against Employer.

You have 6 months from the event or conduct to file. That means if your company comes out with a new policy, or if you are required to sign a form acknowledging your receipt of the handbook or agreement to the policies, you have six months from that date. You are entitled to have an attorney represent you before NLRB but you can’t recover your attorney’s fees if you win.

NLRB will investigate, which means they will interview you and you’ll have to sign an affidavit. They’ll also interview your employer and any witnesses. Then they’ll decide whether or not to issue a complaint against your employer. If they do, NLRB acts on your behalf to proceed against your employer. They will also help try to settle the case.

Unfortunately, your only remedies are reinstatement with back pay and back benefits if you were fired, plus an injunction to prohibit your employer from breaking the law in the future. NLRB might also require your employer to put up a poster advising coworkers of their rights.

The National Labor Relations Act is an under-utilized law protecting employee rights. Your employer may not understand that it applies to them. If you’ve been fired for violating one of these illegal policies, you may have a remedy.

8 comments:

  1. Donna, regarding the at-will employment provision, please note that the union filed that complaint before the NLRB. Unions generally take the most aggressive stance they can in furtherance of their members' rights, but that doesn't mean the NLRB will side with them. At this point, that at-will argument is just an allegation.

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  2. Hi Carolyn. It wasn't the Charge Against Employer, which is what the Union files. This was the Complaint, which NLRB files against the employer after they find cause for the charge.

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  3. Thanks for this post, it is very interesting.

    Do you know if these rules apply to volunteers/interns/fellowships, or only paid employees? I have previously been a fellow at an organisation whose 'confidentiality agreement' included every one of those policies.

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  4. Hi cinnamon. In general, NLRB only has jurisdiction over employees, not volunteers/interns. However, most interns are improperly classified and should be paid as employees, so they may be covered: http://employeeatty.blogspot.com/2011/02/is-your-unpaid-internship-illegal.html

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  5. Thanks for the reply Donna!

    That other post is also very interesting... I think I probably should have been paid. It might also explain why my job title changed from coordinator to intern to fellow and is now listed simply as 'volunteer'....

    This blog is a really great resource, thanks for all the work you've put into it.

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  6. Thanks cinnamon! I'm glad you enjoy it.

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  7. Thank you very much for your blog. Are you aware of any sample handbook wordings? The one we have has very similiar writing and I'd like to update it. Thank you!

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  8. Hi Asher. The problem with cookie cutter handbooks is that they might contain policies that don't apply to your company, may have things that are illegal in your state or locality, and might not contain things you need. I would recommend talking to a management-side employment lawyer in your state about having one custom made for your company.

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