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11 Company Policies That Might Be Illegal

Author: Daniel Davis

Your employee handbook is your company's Bible regarding policies and procedures that govern the workplace. However, you may be inadvertently enforcing policies that are against the law. The National Labor Review Board (NLRB) recently issued a report, General Counsel Memorandum GC-15-4, which explains a variety of policies that may violate the rights of your workers.

Below are ten of those policies:

1. Confidentiality Policy

Employees have a Section 7 right to discuss wages, hours, and other conditions and terms of employment with fellow employees, as well as nonemployees such as union representatives. However, employers can forbid workers to discuss business secrets, financial, and other confidential, proprietary information that is not publicly known.

2. Employee Conduct Toward Company and Supervisors

Recognizing an employee's right to criticize the organization's treatment of workers, the NLRB states, Companies cannot prohibit employees from engaging in disrespectful, negative, inappropriate, or rude conduct towards the employer or management without providing a specific context. However, employers can ban insubordination, intimidation, threats, and assaults.

3. Employee Conduct Toward Fellow Workers

Employees have a right to engage in lively debates among themselves regarding management, employment conditions, and unions. Companies cannot ban negative discussions, but they can ban racial slurs, derogatory comments, and threatening behavior.

4. Employee Interactions with Third Parties

Companies cannot tell employees that they can't speak with the media, government officials, etc. regarding salaries and terms of employment unless authorized by human res. However, companies can ban employees from speaking as an authorized company representative.

5. Restriction of Company Logos, Copyrights, and Trademarks

Employees can use company logos, etc. on protest materials such as picket signs and posters, and they can also use it on their personal social media profiles. However, companies can ask employees to respect copyright laws by citing s used in online communication.

6. Restriction of Photography and Recordings

Companies cannot restrict employees from taking unauthorized pictures and videos in the workplace because this would also hinder workers from using their personal devices on personal time. And it would hinder them from recording possible health and safety violations in the workplace. However, in instances where a patient's privacy would be compromised, or such recordings would constitute a breach, restrictions are permissible.

7. Restricting Employees from Leaving Work

Recognizing an employee's right to strike, the NLRB states that as a general rule, policies referring to walking off the job or failing to report for work for three days without authorization as grounds for disciplinary action to be unlawful because such policies could prohibit workers from striking. However, it did rule that: Walking off shift, failing to report for a scheduled shift and leaving early without supervisor permission are grounds for immediate termination, for healthcare workers who have an obligation to ensure that patients are cared for. According to the NLRB, this is not a total ban on strikes, but an acknowledgment that patient care is paramount.

8. Conflict of Interest

An employee's right to improve their terms of employment is protected even if it conflicts with the company's best interests. As a result, companies cannot create policies stating that employees cannot engage in any action that is not in the best interest of the employer. However, companies can forbid activities that would exploit one's position with the company for personal gain.

9. Handbook Disclosure

Companies cannot create a broad policy prohibiting employees from sharing the employee handbook with third-parties because this would also include an employee's union representatives or co-workers.

10. Social Media

Companies cannot punish employees for posting unflattering information via social media–as long as they're not speaking on behalf of the company. Also, phrases that attempt to limit complaints to the official internal process are also unlawful because they do not recognize an employee's right to speak to others outside of the organization.

11. No Distribution/No Solicitation Policy

Companies cannot create broad policies prohibiting solicitation or distribution of literature on company grounds because employees have a right to solicit when they're not at work. Also, employees can physically distribute literature as long as it's in a non-work area. Additionally, employees can distribute material electronically in work areas when neither party is working.

The Bottom Line

Employee handbooks are the go-to for policies, rules, and regulations. However, sometimes, companies make policies that are so broad that they are not lawful. Understanding how the wording of certain policies can affect their legality can help companies create a handbook that maintains the rights of their employees and is also compliant with the law. (Learn more ways to protect your company, here: Protect Your Company From Employee Lawsuits.)

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