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New NLRB Chair's Dissent May Point to Future Board Position on Challenges to Employee Handbook Policies

    Client Alerts
  • March 15, 2017

Over the past several years, the National Labor Relations Board (NLRB) has repeatedly found that standard employee handbook provisions violate employees’ rights under Section 7 of the NLRA. These cases conclude that a variety of policy provisions could have a chilling effect on concerted activity because they could be read to prevent employees from discussing terms and conditions of employment among themselves. These cases have invalidated handbook policies ranging from social media, confidentiality, recording and photographing, and other common employer rules.

Last month, the NLRB continued this practice of invalidating handbook policies in Cello Partnership d/b/a/ Verizon Wireless. However, the dissent in the case written by new NLRB Acting Chairman Miscimarra may signal an important change in the Board’s approach to future policy challenges when Republicans gain a majority of Board seats later this year.

In this case, the Board majority rejected several Verizon policies as contrary to Section 7’s concerted activity rights. These included (1) an identity theft policy that prohibited employees from accessing or disclosing employees’ personal information to persons outside of the company; (2) a conflicts of interest policy that cautioned employees from making decisions regarding Verizon products if they serve in outside non-profit organizations; and (3) a policy that limits the use of company resources to solicit or distribute for non-work related purposes. In all three situations, the Board concluded that the policies could be read by Verizon employees to prohibit them from participating in union organizing activities.

In his dissent, Chair Miscimarra argued for rejection of the standard that judges handbook policies based on an employee possibly misconstruing their purpose and applicability to concerted activity. Instead, he advocated a standard that would include review of the legitimate purposes behind the policy, as well as asking whether it has ever actually been used by the employer to interfere with NLRA-protected rights. Using this alternative test, he concluded that the challenged policies did not violate the NLRA, with the exception of the community organizations policy, because it did not specifically exclude union involvement.

If this standard is adopted by the Board in future cases, it could signal the end to broad challenges to employment policies that do not appear applicable to employee labor rights, and which have never been interpreted or used by the employer for that purpose. This in turn would allow employers to avoid frequent handbook revisions intended to keep up with the latest NLRB pronouncements.