Following the Law May Be Trickier than You Think
The National Labor Relations Board (NLRB) has been known to make some pretty amazing judgments – and by “amazing,” we mean, “employers had better be careful.” You’ve heard of Ripley’s “Believe it Or Not”? Well here’s an entry from CEDR’s Believe It or Not. The NLRB found the following (paraphrased) statement in a hospital’s employee handbook to be unlawful:
Employees must represent the Employer in the community ‘in a positive and professional manner’ at all times.
We’re not kidding. Legally speaking, you cannot tell your employees that they must avoid saying negative things about your practice, whether they’re talking with their friends and neighbors, the checkout clerk at the grocery store, the family dog, or anyone else. How is this possible?
The reason is that the National Labor Relations Act (NLRA, or “the Act”) includes a section that gives all employees (other than supervisors) the right to self-organize or get together with others and discuss their wages, hours, and terms and conditions of employment without fear of retaliation by the employer. Over the past few years, the NLRB has been reviewing and issuing rulings on various employee handbook statements that do not comply with the Act – and their definitions of non-compliant language are broader than most employers would imagine.
“I Really Can’t Have a No-Gossiping Policy?!” and “My Employees Can Say WHAT On Social Media?!”
Here’s one of the most common policy problems, often found in an employer’s Rules of Conduct, and quite possibly lurking in your own policies: Prohibitions that restrict employees from negative “gossip,” negativity or gossip in general, and complaints about work or about their co-workers, have been found illegal by the NLRB.
Furthermore, the NLRB has attacked numerous social media policies in employee handbooks that contain broad prohibitions on posting comments about work conditions. Once again, the reasoning behind this enforcement is the protection of employees’ basic rights – but in the process, life becomes dangerous for employers.
What does this mean to you? If your social media policy was not written recently and correctly, you could be subjecting yourself to a NLRB claim by a current or former employee! Here’s a tip from the experts: Check whether your policy still says that employees may (or will) be disciplined or fired for posting negative comments about the practice on Facebook or MySpace. If it does, please give the employment law experts at our CEDR HR Solution Center a call before you regret it.
NLRB Rulings Protect Employee Rights – and Create Policy Pitfalls for Employers
The ruling we mentioned at the beginning of this trainer, requiring employees to represent the employer “in a positive and professional manner at all times,” exemplifies the type of language that the NLRB finds most problematic: overly broad and ambiguous words such as “professional,” which covers all kinds of employee behavior under all sorts of circumstances.
Of course, any employer has a very good reason for wanting employees to represent the employer in a positive way in the community! From the NLRB’s standpoint, however, employees could perceive the policies to prohibit them from protesting unfair labor practices or reporting bad working conditions to third parties.
In the same ruling, the NLRB also knocked down two other handbook rules: one that prohibited negative comments about fellow team members, and one that prohibited employees from listening to or engaging in “negativity or gossip.” These were found illegal because they prohibit perfectly lawful behavior.
Bad Wording Could Cost You Thousands: Make Sure Your Policies are Legally Compliant!
“Wait a second!” you’re thinking. “How can I tell my employees that it is okay to gossip, when this kind of behavior is destructive to the team?
We understand! In a small business, gossip can be a morale killer, no doubt about it. And there are legal ways to encourage the right behavior in your employees, but it’s all about the verbiage. The right employee handbook can help you manage better and with less stress and fear – but it just isn’t safe to write it yourself, use a template you can’t trust (we’ve virtually never seen a good one), or use borrowed policies that were not written by an employment law expert.
Want to perform a few more self-checks? Does your handbook tell employees they will be disciplined or fired if they talk amongst each other about wages or bonuses? Does it go a step further and tell employees that they must always speak positively about your practice or each other? Time to update!!
Don’t get penalized for violating laws you never meant to break. Instead, let an employment law expert re-write your handbook (customized to your office) so it is compliant with the NLRA and all other employment laws, both federal and state. We only mentioned a few topics – there are hundreds of other policies that require the right wording to keep you compliant!
Start making practice management safer and easier! If you’d like to check whether your existing policies contain hidden dangers, ESS members are eligible for a FREE evaluation of your current employee handbook – normally a $299 value – at no cost or obligation. If it’s great, we’ll let you know, and if it’s not, we’ll tell you which policies are putting you at risk. Just give CEDR’s Solution Center a call at 866-414-6056, or email firstname.lastname@example.org.
Friendly Disclaimer: Tips presented here are general in nature, and are not intended to replace good counsel about a specific issue with either your attorney or your favorite HR expert.