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Latest News - August 2013

August 7, 2013
Reconstituted NLRB to scrutinize employee handbooks
By: Dan Cook

The National Labor Relations Board is back in action again after being in limbo for a year-plus as Republicans and Democrats squabbled over President Obama’s appointees. And HR professionals had best begin combing through their employee handbooks to root out anything that might smack of vagueness, coercion, infringements on personal rights and more.

So says labor law expert Steven M. Bernstein, partner, Fisher & Phillips. Bernstein represents employers in a wide range of labor matters and recently expressed some strong views about the NLRB’s direction in a SHRM article on the board.

Bernstein predicted that the full-force NLRB will be examining employee handbooks, looking for:

Vague or ambiguous language.

Advance authorization before engaging in the conduct at issue.

Broad categories of prohibited or required conduct.

Any language purporting to restrict internal wage or disciplinary discussion.

Use of generic terms such as “unprofessional,” “misleading” or “inappropriate.”

Language compelling all employees to confine their concerns to management.

Blanket confidentiality provisions within the context of internal investigations.

At-will disclaimers precluding modification by anyone at any time.

Access rules reserving managerial discretion or requiring advance approval.

Solicitation restrictions extending beyond working time and working areas.

Why is the NLRB boring into handbooks instead of building a caseload of union-management disputes to resolve? Simple: There aren’t many of those around any more.

“We are entering an era where unions are in decline,” Bernstein told “The reality is, against that backdrop, you have an agency confronting a diminished caseload. So they are going to try to reinvent themselves. They are trying to stay relevant.”

Hence the focus on employee handbooks, he said.

“Handbooks are a natural source of information for them. All employers have them, not just unionized businesses. So we’re already seeing a whole rash of investigations,” Bernstein said.

As for the issues on his checklist, Bernstein said HR managers should expect them to be aired fairly quickly. “A lot of these investigations are already well under way. It won’t take long to start to see decisions coming down.”

One area employers should be particularly concerned about is any policies that infringe on a person’s social media “rights.”

“Social media today is the water cooler of yesterday. It’s where people gather to gossip, chat, complain. You weren’t allowed to sanction people for what they said around the water cooler, and you can’t sanction them for most of the content they post on social media,” he said. “This will be an area of focus for the board.”



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