New Guidance Regarding Employee Handbooks Part Two: Employee Conduct Rules Can Prohibit Insubordination and Harassment But Cannot Prohibit Criticism and Debate
This post is the second in a series providing guidance on federal rules regarding permissible and impermissible employer handbook policies and rules. See Guidance Regarding Confidentiality Rules, here. While the recent guidance was issued by the National Labor Relations Board (NLRB) found here, this guidance is applicable to both unionized and non-unionized employers. The National Labor Relations Act (NLRA) restricts all employers from issuing policies or rules – even if well-intentioned – that inhibit employees from engaging in activities protected by the act, such as discussing wages, criticizing management, publicly communicating about working conditions and discussing unionization.
Employee Conduct Rules: What Is At Stake?
The NLRB acknowledges that employers have a right to prohibit employee insubordination. Equally important, employers have a right and an obligation to ensure that their workplace is free from harassment. However, these employer rights and legitimate business interests must not be expressed in rules that also curtail employees’ rights to (1) criticize or protest their employer’s labor policies or treatment of employees; or (2) argue and debate with each other about unions, management and their terms and conditions of employment. The NLRB places a high premium on these employee rights, so much so that even false and defamatory statements regarding employers is permitted (provided they are not malicious) and that speech among employees may even be “intemperate, abusive and inaccurate,” and still be protected.
While context always matters, there are a few clear guidelines:
• DO NOT demand that employees “respect” all employees and management. A broad rule such as this, without any context or examples, will be deemed unlawful.
• DO NOT insist that employees refrain from conduct that could “damage the company’s reputation;” however, prohibiting disparagement of an employer’s product is permissible.
• DO require employees to cooperate with each other in the workplace.
• DO NOT prohibit employees from debating honestly with each other.
The NLRB not only disfavors policies and rules that expressly prohibit or restrict employee discussions and collective action, but also those that are vague enough to dissuade an employee from such activities. According to the NLRB, employees should not have to guess about whether they are allowed to talk about their pay, hours or working conditions, but should instead feel free to do so.
When Do Employee Conduct Rules Strike The Right Balance?
Employers can clearly prohibit insubordination and harassment; however, such rules must still be clearly tailored to avoid scrutiny from the NLRB. Some examples of employee conduct policies that the NLRB has deemed lawful include:
• No “rudeness or unprofessional behavior towards a customer, or anyone in contact with” the company.
• “Employees will not be discourteous or disrespectful to a customer or any member of the public while in the course and scope of [company] business.”
• “Each employee is expected to work in a cooperative manner with management/ supervision, coworkers, customers and vendors.”
• “Each employee is expected to abide by Company policies and to cooperate fully in any investigation that the Company may undertake.”
Further, as to employees’ conduct towards each other, the NLRB approved of the following policies:
• No “making inappropriate gestures, including visual staring.”
• Any logos or graphics worn by employees “must not reflect any form of violent, discriminatory, abusive, offensive, demeaning, or otherwise unprofessional message.”
• No “threatening, intimidating, coercing, or otherwise interfering with the job performance of fellow employees or visitors.”
• No “harassment of employees, patients or facility visitors.”
• No “use of racial slurs, derogatory comments, or insults.”
Perhaps the most important takeaway when reviewing company policies is that context matters. Illustrative of this point, the NLRB upheld a rule that prohibited, among other things, “being disrespectful” because it was clear based on the context that the provision was focused on serious misconduct, i.e., being insubordinate, threatening, intimidating or assaulting others in the workplace. A rule with examples of what constitutes “disrespect” will not unlawfully cause workers to refrain from any spirited debate or discussion regarding working conditions.
When reviewing policies intended to ensure a safe, productive and harassment-free workplace, employers must consider if rules impede employee rights to discuss, criticize and debate. Broad rules requiring constant “civility” and “respect” run the risk of prohibiting collective action and will be reviewed with disfavor by the NLRB.