Employers must have well written employee manualsEmployers are once again put on notice that missteps in drafting employee handbooks and other HR policies will be targeted as unfair labor practices where they come within an area code of compromising employee rights under the National Labor Relations Act (NLRA).

This time, a California casino was found to have interfered with workers’ labor law rights. This interference arose from the employer having a handbook that prohibited employees from conducting “personal business” while at work on the employer’s premises. Casino Pauma (7/18/16).

Specifically, the employee handbook rule provided in part that:

Team members are to conduct only Casino Pauma business while at work. Team members may not conduct personal business or business for another employee during their scheduled working hours.

The NLRB administrative law judge issuing the decision reasoned that under the NLRA, employees have the right to discuss union issues. Employees also have the right to engage in other protected activity during their nonwork time. But the Casino’s rule violated both rights because it was overbroad in that it unlawfully restricted employee rights.

This was because:

  1. Denying employees the right to engage in protected activity “while at work” was too broad; and
  2. The rule was also overbroad, “because it is not properly restricted to ‘work time’ and thus bans protected activity during nonwork hours, such as time on lunch, breaks and before and after work.”

Companies Need to Carefully Review and Update their Employee Handbooks

First, it is important that your company actually has an employee handbook. This is a fundamental building block for any business with a workforce.

Second, we’ve written extensively about the risks employers face in having poorly drafted employee policies and handbooks. There is also danger where such policies and handbooks have not been updated to reflect the increased policing by the NLRB when it comes to such HR staples. See NLRB Finds Employer’s Workplace Rules Violated Federal Labor Law and Employer Charged with Unfair Labor Practice Because Employee Manual and Agreements Were Unlawful.

Third, this casino case is also consistent with our experience in representing employers in NLRB proceedings. In fact, we just resolved three unfair labor practice charges initially involving disciplinary actions taken by the company (which were all or partially dismissed). However, the charges were later expanded to alleged overbroad provisions in the employee handbook.

The bottom line is that employers need to carefully scrutinize their employee manuals and policies to avoid an (over)zealous NLRB finding such documentation inadvertently violate workers’ labor rights.

For more information about drafting and updating your company’s employee manuals and HR policies, contact employment attorney Jason Shinn. Since 2001, he has collaborated with employers to comply with Federal and Michigan employment laws.