Despite these obvious benefits, a handbook that possesses even the slightest ambiguity or oversight can leave an employer vulnerable to claims of unfair labor practices or other litigation. To avoid such allegations and the costs they can incur, the employer should pay close attention to detail and be aware of the relevant laws in its effort create a lawful handbook.
When drafting an employee handbook, it is important to read every word literally and consider every possible interpretation that may conflict with the rules’ intent.
What are the rights of the employee?
Employers may not interfere with an employee’s right to engage in concerted activity for the purpose of protection or mutual aid. This duty extends far beyond merely allowing employees to discuss or organize a union.
The bounds of the rules set forth by an employer need to be carefully set and explained so as not to unlawfully challenge protected actions. For instance, a blanket statement requiring confidentiality in all employer matters may sound safe and uncomplicated but in practice could unlawfully prohibit employees from engaging in any concerted discussion concerning wage and working conditions, actions which would generally constitute protected activities.
A more precise confidentiality clause should specify the sensitive business matters intended for protection while avoiding interfering with the legal rights of employees.
The freedom to communicate about union involvement is a significant right of workers. Oral communications and the exchange of union cards, referred to as solicitation, are practices that employers sometimes wish to de-emphasize. While the ability to discuss unionizing is a fundamental right of workers, employers still may place certain restrictions on solicitation.
Nonemployees may be forbidden from soliciting or distributing materials on company property. Employees may also be forbidden from discussing unionization during work time, although a clear definition of exactly what constitutes work time will avoid unlawfully prohibiting union discussions while employees are on break.
There are, of course, numerous exceptions to these rules that certain employers need to be aware of that can broaden, as well as further restrict, the range of acceptable employee conduct.
Health care workers, for example, have greater limits on where and when they may solicit or discuss issues involving their employer due to the heightened sensitivity of the patients who rely on their attention and care. Hotel employees, however, may not necessarily always be prohibited from distributing union materials on their worksite as long as they are off duty and interacting in an otherwise public space.
The particulars of these rules may vary, so it is important for an employer to be informed about the pertinent laws before completing its handbook.
After publishing a precise employee handbook that is free of ambiguities and less vulnerable to misinterpretation, the duty of the employer merely begins. An employer must be careful to equitably apply the rules it sets forth and not selectively muzzle any implied rights. An employer who picks and chooses which rules it wishes to enforce often does so at its own peril.
For instance, if an employer permits its employees to access the company e-mail system or phone lines for personal use, it may not prohibit employee union solicitation via those systems. This principle applies to all facets of employer/employee relations.
In short, the consistent enforcement of fair, concise and lawful employee handbook guidelines that are readily accessible to all employees will help deter adverse employment litigation.
While the guidelines outlined above are important, they should not be used as a substitute for consulting with competent employment counsel about employers’ rights and obligations in drafting a lawful employee handbook.
Lynn C. Outwater is managing partner of the Pittsburgh Office of Jackson Lewis LLP. Joseph S. Palmiero is an associate, same office. With 21 offices across the country, Jackson Lewis represents management exclusively in workplace law and preventive strategies. Reach Outwater and Palmiero at firstname.lastname@example.org, email@example.com or (412) 232-0404.