Employee Handbook Blog

EMPLOYEE HANDBOOKS AND POLICIES MAY NEED TO BE REVISED IN RESPONSE TO NLRB DECISIONS CONCERNING SOCIAL MEDIA , WORKPLACE INVESTIGATIONS AND EMPLOYEE AT WILL DISCLAIMERS (January 2013)

Attorney Leslie Lockard
The Law Office of Leslie Lockard, P.C.
P.O. Box 537
Walpole, MA 02081
Tel. 508 850-9800
FAX 508 850-9801
Email: Llockard@leslielockard.com
Website: www.LeslieLockard.com

During January, many employers consider whether their employee handbooks or policies need updating or revision. This may therefore be a good time to provide a summary of several National Labor Relations Board decisions during 2012 that may make handbook policy revisions advisable. These NLRB decisions may impact employer social networking and confidentiality policies, as well as policies concerning workplace investigations and employment at will.

NLRB DECISIONS HAVE FOUND SEVERAL WELL ACCEPTED EMPLOYER PRACTICES TO UNLAWFULLY INTERFERE WITH EMPLOYEE RIGHTS TO WORK TOGETHER TO IMPROVE WORKPLACE CONDITIONS

One of the primary developments to affect employers in 2012 was a heightened concern shown by the federal National Labor Relations Board (NLRB) to protect employee rights to engage in “concerted protected activity”. Employees generally have the right to communicate and work together to improve their pay and other workplace terms and conditions. This right applies whether or not the employer is unionized. This heightened NLRB focus on protecting employee concerted activity lead to several decisions in which well accepted employer practices were found to be unlawful interferences with employee concerted activity rights. Among the well accepted employer practices NLRB decisions deemed unlawful included;
  • Instructing employees who are interviewed in a workplace investigation to keep the discussion confidential;
  • Having a social media policy which prohibits employees from engaging in such activities as posting comments that disparage the employer, its supervisors, coworkers and customers
  • Having, in the NLRB’s view, overly broad “employee at will” policies
Social Media or Confidentiality Policies

The NLRB continued in 2012 a trend which it had begun earlier of finding language many employers routinely included in their social media or confidentiality policies to unlawfully interfere with employee concerted activity rights. These social media or confidentiality policy provisions were deemed unlawful even though there was no evidence that the policy had been adopted for the purpose of restricting concerted employee activity. Over the past few years, here has been an explosion in social network communication, such as blogging, and Facebook and Twitter postings. A number of employers have been subjected to public relations nightmares because of foolish or spiteful employee postings. For example, a fast food restaurant employee posted nationwide a photograph of himself standing in a container of chopped lettuce, stating, “this is the lettuce you eat here at ________”.Employers have also increasingly become concerned that they could be held liable for employee postings that constitute unlawful harassment, defamation or copyright infringement.

The explosion in social media has lead the NLRB to believe that employees now often engage in protected discussion of workplace complaints on Facebook and other social media, rather than by more traditional means of talking in person or handing out flyers. The NLRB is concerned that restrictive employer posting policies will lead employees to believe that they could be fired for posting protected complaints or communications about workplace policies or conditions. The NLRB has therefore issued a number of decisions in which employers have been found to have committed unfair labor practices by discharging employees for violating (in the NLRB’s view) overly broad social networking or confidentiality policies. Having what the NLRB views as an overbroad policy has in itself been deemed an unfair labor practice.

Among the employer social media or confidentiality policy provisions that the NLRB has in some circumstances found to be overly broad, and therefore to unlawfully interfere with employee protected activity, are the following:
  • Telling employees not to share confidential company information with coworkers unless they need the information to do their job;
  • Telling employees to be sure their postings are accurate and not misleading and do not reveal non public company information on a public site, including any topic related to the financial performance of the company, or personal information about company employees such as their performance, compensation or status in the company
  • Telling employees not to incorporate employer logos or trademarks in their postings
  • Telling employees not to post “offensive, demeaning, abusive or inappropriate remarks” or “disparaging or defamatory” comments
  • Telling employees that communications with co-workers that would be inappropriate in the workplace are also inappropriate on line;
  • Telling employees to think carefully before they “friend” coworkers on Facebook
  • Telling employees that they should not comment of company legal matters
  • Telling employees that that they best resolve workplace concerns by discussing them with management or coworkers rather than by posting complaints on the internet;
  • Telling employees that they cannot post confidential or proprietary information
  • Telling employees they cannot correspond with the press about the company or its business activities without prior permission from the company
The NLRB did issue memoranda this year in which it provided advice to employers about what kinds of social media policy wording they deem lawful and unlawful. They also issued a sample social networking policy that contains language they deem acceptable.

Advising Employees Interviewed During The Course of A Workplace Investigation to Keep The Matters Discussed Confidential

It has been a well established practice for employers to instruct employees who are interviewed during the course of a workplace investigation to keep the matters discussed confidential. This is done for many reasons, including protecting the privacy of the employees involved in the investigation, and allowing the employer to hear each interviewee’s own memory of events, without the interviewee’s memory being influenced by discussions with coworkers. Indeed, when an employer investigates an employee complaint of sexual harassment, both federal and state guidelines state that they should keep the matter confidential. For example, Guidelines on sexual harassment issued by the Massachusetts Commission Against Discrimination state that those who investigate workplace complaints of sexual harassment:

“should inform each interviewee, as well as any other individual apprised of the investigation, that the investigation is confidential and should not be discussed with co-workers


In a 2012 case concerning the Banner Estrella Medical Center and its employee, James Navarro, the National Labor Relations Board found that Banner had violated Mr. Navarro’s right to discuss workplace concerns with his coworkers by having a routine practice of asking employees not to discuss with coworkers matters under investigation until after the investigation ended. Mr. Navarro’s job duties for Banner included sterilizing surgical instruments. After equipment that was usually used for sanitization temporarily malfunctioned, Mr. Navarro failed to comply with repeated instructions from his supervisor that he temporarily use an alternate method of sanitization. Mr. Navarro maintained that he did not think the alternate method would be safe. In investigating Mr. Navarro’s insubordinate conduct, Banner’s HR person, in accordance with Banner’s established practice, instructed Mr. Navarro not to discuss with his coworkers the matters under investigation while the investigation was ongoing. The administrative law judge who initially heard the case found this instruction lawful, as it made it possible for Banner to hear the independent recollection of each person interviewed during the investigation. However, the NLRB subsequently overruled this part of the judge’s decision. They found that to justify such an instruction, the employer must demonstrate that it has a specific need for confidentiality, such as a need to protect witnesses or to prevent a cover up or destruction of evidence. The NLRB found that Banner’s “blanket” policy did not meet this requirement of articulating a specific justification for confidentiality that would outweigh the employee’s interest in discussing the matter with coworkers.

Thus, employers may be best advised to review their policies about workplace investigations and consider revising wording that the current members of the NLRB may view as a blanket rule requiring employees to keep confidential matters under investigation. In addition, when employers do believe that they need to require or request confidentiality during a workplace investigation, they would be well advised to document their specific reasons for doing so.

Statements In Employee Handbooks That All Employment Is “At Will”

It is a well established practice for employers to state in employee handbooks that all employment with the company is at will. This means, in essence, that both the employee and the employer can end the employment relationship at any time, for any (lawful) reason, with or without notice. Among the reasons employers include such statements is to eliminate any misunderstandings, and to minimize the possibility that the handbook could be understood to create a right to continued employment or other legally enforceable rights.

In February of 2012, an administrative law judge found that the American Red Cross had violated the National Labor Relations Act by having employees sign an acknowledgement that their employment was “at will” , which included the statement that: “I further agree that the at will employment relationship cannot be amended, modified or altered in any way”. The judge found that this quoted statement could lead employees to believe that they had waived their right to work with other employees to change their “employee at will” status, such as by forming a union.

Soon after that, the NLRB issued a complaint against a Hotel, alleging that it had an unlawfully overbroad “employment at will” statement in the acknowledgment form that it required employees to sign in issuing them the employee handbook. That statement read: “I understand that my employment is at will. I acknowledge that no oral or written statements regarding my employment can alter my at will status, except for a written statement signed by me and the company’s executive vice president, COO or president”. That case ended up being settled, with the hotel agreeing that it would no longer require employees to sign an “overly broad” acknowledgement worded in this way.

These cases caused a good deal of comment and concern: it is very common, for reasons that have nothing to do with employee concerted activity rights, for employers to include language in their handbooks similar to Hotel’s quoted above. Perhaps partially in response to this widely expressed concern, the NLRB’s General Counsel issued a Memorandum providing guidance as to the NLRB’s view of employment at will statements. The Memorandum quoted and approved an employment at will statement that had been included in a restaurant’s employee handbook. The General Counsel deemed lawful the following language:

“The relationship between you and Mimi’s Café is referred to as “employment at will”. This means that your employment can be terminated at any time, for any reason, with or without cause, with or without notice, by you or the company. No representative of the Company has authority to enter into any agreement contrary to the foregoing “employment at will” relationship. Nothing in this handbook creates an express or implied contract of employment”


The General Counsel stated that this language, unlike that of the Red Cross quoted above, would not likely be understood by employees as essentially a waiver of their right to work together to change their “employee at will” status.

Many employers have “employment at will” statements repeated several times in their employee handbooks, as well as in employee handbook acknowledgement forms. It would probably be advisable for employers to review and, if necessary, revise these statements so as minimize the likelihood that the NLRB would deem them objectionable. It will be particularly advisable to revise language that the NLRB would likely view as suggesting to employees that they have waived their protected rights.

THIS ARTICLE IS FOR GENERAL INFORMATION ONLY, AND IS NOT INTENDED TO PROVIDE LEGAL ADVICE AS TO ANY PARTICULAR SITUATION. EMPLOYMENT LAWS ARE CONSTANTLY SUBJECT TO CHANGE. QUESTIONS ABOUT PARTICULAR SITUATIONS SHOULD BE DIRECTED TO A KNOWLEDGEABLE EMPLOYMENT ATTORNEY.





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Contact Info

Attorney Leslie Lockard
The Law Office of Leslie Lockard, P.C.
P.O. Box 537
Walpole, MA 02081
Tel. 508 850-9800
FAX 508 850-9801
Email: Llockard@leslielockard.com
Website: www.LeslieLockard.com