Safe Bet: Your Employer Handbook Contains Illegal Rules

Source: Robert Schwartz, Labor Notes, September 12, 2017

It sometimes looks like union and non-union employers are competing for the fattest book of employee rules. Handbooks frequently exceed 100 pages. Employees who fail to adhere to a standard—even one that is not explained—can be subject to discipline and possible discharge.

This makes it vital for unions to review National Labor Relations Board cases concerning company handbooks; the Board’s thinking on this topic is known as the Lutheran Heritage doctrine.

The Board says that broad or ambiguous employer rules, even if “facially neutral,” violate Section 8(a)(1) of the National Labor Relations Act (NLRA) if employees are likely to read them as applying during concerted activity, such as protests for improved working conditions, contract campaigns, or investigating grievances.

Many NLRB decisions are shockers, invalidating longstanding rules on disloyalty, discourtesy, confidentiality, and false statements. ….

How to Tell If a Rule Is Illegal
1. Does the rule prohibit conduct that an employee might want to engage in to advance a union goal?
2. If yes, does the rule contain an exception for concerted activity?
3. If not, does the rule give enough examples of non-union types of misconduct that a reasonable employee would understand it does not apply to union activity?
4. If not, the rule is most likely illegal. Demand that the employer remove or rewrite the rule, and threaten to file an unfair labor practice charge. ….