Two annoyances in life often involve cliches and living out a cliche. This is especially true when the cliche is “shooting yourself in the foot.” But T-Mobile got to experience both last week when the National Labor Relations Board (NLRB) ruled that it engaged in unfair labor policies.
The ruling arose out of T-Mobile’s employee handbook, code of conduct, and a confidentiality form that all employees are required to sign. However, because of the manner in which T-Mobile drafted these documents, the NLRB found they obligated T-Mobile employees to comply with unlawful labor rules. The full NLRB opinion is available here (NLRB_T_Mobile_Opinion_2015_3_18).
We previously explained that employers need to be mindful that the NLRB would be focusing on employee manuals, sometimes called employee handbooks, and other employee agreements that violate employee rights under the National Labor Relations Act (NLRA) (an act that applies to union and non-union employees). See Employee Manuals Need Spring Cleaning Thanks to the NLRB. We also expressed our concern that many provisions in employee manuals and agreements could violate the NLRA and, therefore, subject companies to an unfair labor practice charge similar to what T-Mobile got hit with.
A review of the T-Mobile opinion substantiates these concerns in that the offending provisions were construed or otherwise interpreted to prevent workers from communicating with one another about wages, from speaking to the news media about workplace conditions and from speaking with co-workers to marshal evidence against disciplinary charges. Over all, administrative law judge found that 11 of the 13 policies subject to the litigation were illegal.
Employee manuals appear to be the “it thing” when it comes to employer liability. And such liability isn’t just coming from the NLRB and decisions like the T-Mobile opinion. Consider for example that we discussed earlier in the year the case where an employer had won an employment-related discrimination claim at the trial level only to have that victory reversed on appeal. The reason for the reversal was a poorly drafted and inaccurate employee manual, which the court held agains the employer in terms of allowing the litigation to continue. See Flag on the Play: Court Takes Away Employer’s Victory Because of Mistake in the Employee Manual).
The NLRB has made it clear that it will be focusing on employee manuals and employment agreements that violate employee rights under the NLRA. And if your company’s employee manual or other employment related policies, procedures, and agreements have not been updated in the recent past, now is the time to do so in order to avoid liability or other mistakes that could cost your company.
For more information about implementing HR best practices and drafting employee manuals, contact employment attorney Jason Shinn. His law firm offers complete employment and HR services for companies and their employees.