Employers have many reasons to make a New Year’s resolution to review and update their internal employee policies. The trend in federal regulatory agencies towards stricter review of internal employment policies is one that should give employers pause.
Most prominent among the agencies taking a strong stance on employee handbook language is the National Labor Relations Board (NLRB). Even if your company does not have a labor union, recent rulings from the NLRB may affect the validity of your employee handbook, because Section 7 of the National Labor Relations Act (NLRA), which applies to all employers, says that employee speech is protected when it addresses working conditions because workers have the right to engage in concerted activities for mutual aid or protection.
In particular, the current Board, which has been operating from 2012-2015, has taken a very pro-employee view of handbook language, and will strike any handbook language where the language could reasonably be interpreted to chill the rights of employees to discuss working conditions. Here are some examples of the types of policies that have been struck down in this time frame:
The Board struck down a policy that required employees to be courteous to customers, co-workers, and management. They also struck down a handbook prohibition against “insubordination or other disrespectful conduct (including failure to cooperate fully with Security, supervisors and managers),” and a rule against insubordination or disrespectful conduct, because it did not carve out protected Section 7 activity in complaining about working conditions. The Board may have accepted a prohibition against “insubordination” but adding disrespectful conduct made the policy provision suspect.
The Board continues to strike down employee policies that forbid discussion of confidential wage information. Employees cannot be prohibited from discussing the terms and conditions of employment, such as wages, hours, schedules, or workplace complaints.
Confidentiality of Company Information
Rules that prohibited employees from discussing company information with news media, government agencies or other third parties about wages, benefits, or other terms and conditions of employment have also been struck down by the NLRB. The Board also struck down a policy against discussions on the Internet or blogs about the company.
Protection of the Company’s Reputation
The Board has struck down policies that prohibit behavior that would cause harm to the Company’s business or reputation, disrupt the company’s business relationships, or undermine the reputation of other company employees. In order for such rules to be upheld, they cannot include overly broad prohibitions, or must carve out protected Section 7 activity.
Aside from the NLRB and challenges to employment policies, here are some challenges that will come to employee policies in 2016:
Same Sex/Transgender Discrimination & Harassment
With the 2015 approval of same sex marriage, media focus on same sex and transgender issues, and the EEOC’s enforcement of discrimination against same sex and transgender employees, employers will want to review policies to assure that their language is in compliance with the current regulatory environment.
Religious & National Origin Harassment
As noted in a previous blog post, there is increasing scrutiny of the potential for religious and national origin harassment, so employers would be wise to take another look at those policies.
Accommodations in the Workplace
Supreme Court decisions in 2015 regarding religious and pregnancy accommodations necessitate another look at handbook language in those areas.
WAGE & HOUR CONCERNS
Upcoming changes to the standards for overtime and exemptions from overtime warrant a closer look at current policies.
INSIGHTS FOR EMPLOYERS
In short, companies would be well advised to review their employment policies at least on an annual basis, but this year there is special reason to be concerned about updating handbook provisions given the regulatory environment. Make handbook review one of your New Year’s Resolutions!
Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other employment issues facing your company.