search
cart
facebook twitter linkedin youtube instagram Spotify Podcasts Apple Podcasts Spotify Podcasts Apple Podcasts
  • Sign In
  • Create Account
  • Sign Out
  • My Account
  • NEWS
  • TOPICS
    • Cool Roofing
    • Event News
    • Latinos in Roofing
    • Low Slope
    • Legal
    • Metal
    • Project Profiles
    • Roofing Supply Pro
    • Roofing Safety
    • Steep Slope
    • Sustainable Roofing
    • Technology
  • EXCLUSIVES
    • Best of Success
    • Contractor Profile
    • IRE Show
    • Roofing Contractor of the Year
      • Enter Roofing Contractor of the Year
    • Top 100
      • Enter the Top 100
    • Young Guns
    • State of the Industry
    • Century Club
  • MULTIMEDIA
    • Videos
    • Podcasts
    • Interactive Spotlights
    • Roofing Quizzes
    • IRE Videos
    • Webinars
    • Photo Galleries
  • PRODUCTS
    • New Products
    • Featured Products
  • COLUMNS
    • Editor's Note
    • Exit Planning
    • Legally Speaking
    • Safety Advice
    • Technical Details
    • Guest Column
  • EVENTS
    • International Roofing Expo
    • Webinars
    • Best of Success Conference
    • Industry Events
  • DIRECTORY
    • Associations
    • Distributors
    • Manufacturer/Supplier
    • Business Services
    • Get Listed
  • MORE
    • Roofing Contractor eNews
    • RC Store
    • Roofing Supply Pro
    • Custom Content & Marketing Services
    • Market Research
    • Sponsor Insights
    • Company Spotlights
    • Classifieds
      • Auctions
      • Business For Sale
      • Business Opportunities
      • Equipment For Sale
      • Positions Available
      • Products
      • Safety
      • Software
      • Services
      • Training
    • Contact Us
  • EMAGAZINE
    • eMagazine
    • Advertise
      • Media Kit
      • Editorial Calendar
      • Contact
    • Archive Issues
  • SIGN UP!
Columns

NLRB Weighs in on Employee-Handbook Guidelines

By Richard Alaniz
Legally Speaking
Legally Speaking
Legally Speaking
Legally Speaking
June 29, 2015

When Wendy’s International LLC created its employee handbook, the company probably never imagined it would become the poster child for what not to do. Yet the Office of the General Counsel (OGC) of the National Labor Relations Board (NLRB), in its recently released Report of the General Counsel Concerning Employment Rules, has held up Wendy’s efforts as an example of illegal, overbroad rules and regulations in violation of federal labor laws. 

Among Wendy’s errors, according to the NLRB: an unlawful handbook disclosure provision; an overly broad social media policy; illegal provisions regarding conflicts of interest; overly broad rules regarding copyright use; too-restrictive rules on employee conduct; and an unacceptable ban on cellphone use at work. Under an informal, bilateral settlement with the NLRB, Wendy’s modified its handbook.hen Wendy’s International LLC created its employee handbook, the company probably never imagined it would become the poster child for what not to do. Yet the Office of the General Counsel (OGC) of the National Labor Relations Board (NLRB), in its recently released Report of the General Counsel Concerning Employment Rules, has held up Wendy’s efforts as an example of illegal, overbroad rules and regulations in violation of federal labor laws.

Along with specific examples from Wendy’s, the NLRB publication describes a number of handbook rules that could get companies into legal trouble. At 30 pages, the report may seem overwhelming, but it provides a roadmap for employers on what the NLRB considers lawful and unlawful. If companies haven’t reviewed the information yet, they should immediately reach out to their HR department or attorneys and conduct a handbook review.

The Updated Guidance

The NLRB memorandum was issued to clear up confusion on changing issues, new social media policies.

The report consists of two parts. The first looks at general employee handbook rules the NLRB has found illegal. It then compares the illegal rules to ones that the NLRB considers lawful, and explains the differences. The second part delves into greater detail about the problems with the handbook from Wendy’s.

According to the report, many of the handbook rules in both sections violated Sections 7 and 8 of the National Labor Relations Act (NLRA). Under Section 7, employees are guaranteed “the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.” Section 8(a)(1) of the NLRA makes it an unfair labor practice for an employer “to interfere with, restrain or coerce employees in the exercise of the rights guaranteed in Section 7.”

The report describes the NLRB’s 2004 decision in the Lutheran Heritage Village-Livonia case, which found that “the mere maintenance of a work rule may violate Section 8(a)(1) of the Act if the rule has a chilling effect on employees’ Section 7 activity.” That case determined rules can violate the act if:

  1. Employees would reasonably interpret the rule’s language to prohibit Section 7 activity;
  2. The rule was created in response to union or other Section 7 activity; or
  3. The rule was actually applied to restrict employees from exercising Section 7 rights.

According to the report, many issues with employee-handbook rules come under the first aspect, where employees could reasonably believe that a rule prohibits protected activity.

The NLRB’s views on the following types of policies limit what would normally be considered non-controversial and normal employment policies. It’s important to remember that the NLRB’s views of these policies have not been tested in litigation. That being said, the report explored several employment rules that the NLRB believes to frequently violate the NLRA, including:

Confidentiality.Under the NLRA, employees have the right to discuss topics such as wages, hours, and other terms and conditions of employment with their fellow employees and non-employees, such as union representatives. That means employers can get in trouble for instituting confidentially policies that specifically prohibit workers from talking about terms and conditions of employment or, in the NLRB’s view, for having policies that would make workers reasonably conclude that they are prohibited from talking about the topics.

Conduct toward the company and supervisors.Criticizing or protesting labor policies or employee treatment is also protected under the NLRA. Consequently, rules that either prohibit, or could be interpreted to prohibit, criticism over protected activities are illegal. 

Conduct toward coworkers.Employees also have the right to publicly discuss and criticize their employer’s labor policies with each other. That’s true even if those conversations become contentious. So without clarification, employers can find themselves in trouble for banning “negative” or “inappropriate” conversations between workers.

Employee interaction with third parties.The NLRA also gives employees the right to talk with the media, government agencies and other third parties about wages, benefits, and other terms and conditions of employment. Employers can still limit who can make official company statements, but rules that could restrict these types of communications can get employers into trouble.

Restricting use of company logos, copyrights and trademarks.The NLRB recognizes that companies have an interest in protecting their intellectual property. But companies can’t restrict employees’ fair use of logos, copyrights or trademarks, including on picket signs, leaflets and other protest material.

Photography and recording.When engaging in protected activity, employees also have the right to take photographs and make recordings. That means employers can get in trouble for completely prohibiting workers from taking pictures and making audio and video recordings at work, as well as having cameras and recorders at work.

Employees leaving work.The NLRB is extremely protective of workers’ rights to strike, so employers must be careful about creating rules that restrict employees’ rights to leave work, if those rules could be interpreted as banning protected strike actions and walkouts.

Conflict-of-interest rules.Employees have a right to participate in concerted activity to improve their terms and conditions of employment, even when those actions conflict with their employer’s interests. As an example, the report points to employees’ rights to organize a boycott or protest in front of a company. So rules that could prohibit such activities are unlawful.

What to Do Next

While employers may disagree with many of the NLRB’s positions and findings, the report offers much-needed clarity on how the NLRB views employee-handbook rules. In order to comply with this new information, companies need to take several steps.

Talk to the experts.Employers should immediately consult with their in-house attorneys, outside law firms, and HR departments to review and understand how the NLRB’s approach to handbooks could affect them. The sooner companies take action, the more they minimize their chances of being found in non-compliance.

Make sure rules are clear and specific.Working with the experts, companies should review their current rules and determine what changes they need to make. In many of the examples the NLRB included, problems came about because of broad or vague rules that didn’t clarify differences between protected and non-protected activity. Employers can head off many headaches by making such distinctions.

Educate employees about any updates.If employers make any changes to their handbooks, they need to let employees and supervisors know of the changes. Some type of written acknowledgment should be obtained. Companies should also provide regular training so employees understand the differences between protected and unprotected activity.

Employee handbooks are designed to educate workers and help companies run smoothly — not cause problems with the NLRB. By taking a few steps, employers can make sure their employee handbooks answer questions and clarify expectations, rather than create issues.

KEYWORDS: employee relations NLRB (National Labor Relations Board) workforce

Share This Story

Looking for a reprint of this article?
From high-res PDFs to custom plaques, order your copy today!

Richardalaniz
Richard D. Alaniz is senior partner at Alaniz and Schraeder, a national labor and employment firm based in Houston. He has been at the forefront of labor and employment law for over thirty years, including stints with the U.S. Department of Labor and the National Labor Relations Board. He is a prolific writer on labor and employment law and conducts frequent seminars to client companies and trade associations across the country. For more information, call Alaniz at 281-833-2200.

Recommended Content

JOIN TODAY
to unlock your recommendations.

Already have an account? Sign In

  • Roofing Contractor Group Publisher Jill Bloom

    Physics, the Power of Authenticity and You

    In February's Publisher's Note, Jill Bloom describes a...
    Columns
    By: Jill Bloom
  • The Family Food Fare supermarket in Midland, Mich.

    ‘Rooftop Ninja’ Discovered Living on Roof, Inside Grocery Sign

    A bizarre tale out of Midland, Mich.: a woman dubbed the...
    Roofing News
    By: Bryan Gottlieb
  • A before and after heat measurement comparison

    How Hot is Too Hot in the Attic?

    If the ventilation is working, how hot should the attic...
    Columns
    By: Paul Scelsi
You must login or register in order to post a comment.

Report Abusive Comment

Subscribe For Free!
  • eMagazine Subscription
  • Sign Up for the eNewsletter
  • Online Registration
  • Manage My Preferences
  • Subscription Customer Service

More Videos

Sponsored Content

Sponsored Content is a special paid section where industry companies provide high quality, objective, non-commercial content around topics of interest to the Roofing Contractor audience. All Sponsored Content is supplied by the advertising company and any opinions expressed in this article are those of the author and not necessarily reflect the views of Roofing Contractor or its parent company, BNP Media. Interested in participating in our Sponsored Content section? Contact your local rep!

close
  • Snow Guard Solutions for Metal Roofs by S-5!
    Sponsored byS-5!

    Safeguard Your Building: How Snow Guards Prevent Costly Roof & Property Damage

  • A hand holding a wooden block that reads 'EVOLVE'
    Sponsored byWatercress Financial

    Embracing Change: A New Era for the Roofing Industry

Popular Stories

QXO closed its acquisition of Beacon Building Supply on April 29, 2025.

QXO Closes Beacon Acquisition, Rebrands Immediately; Jacobs to Ring NYSE Bell

Dear Anna Podcast Lead Generation Optimization featuring Anna Anderson

Dear Anna: How Can I Optimize Lead Generation?

hourglass-with-blue-sand-black-background

QXO Extends Offer to Acquire Beacon Once More Before Closing Deal

Roofing Contractor Webinar

Events

May 22, 2025

Remote Teams 101: The New Way to Hire

Our industry experts will guide you through what remote hiring and outsourcing should look like, how it can help you grow, and why it’s easier (and less scary) than you might think. If you want to save time, find great talent, and grow your business, this is one session you don’t want to miss!

December 3, 2025

The Premier Roofing Conference: Best of Success

Join roofing professionals from across the nation at the 2025 Best of Success conference, the ultimate destination for roofing professionals seeking the latest industry insights and networking opportunities. Pick up strategies for critical challenges like workforce shortage with innovative solutions, explore the latest advancements in roofing technology and sustainable practices, and gain valuable insights from industry leaders on navigating the evolving roofing landscape.

View All Submit An Event

Related Articles

  • Legally Speaking

    The Impact of the Noel Canning Decision on the NLRB

    See More
  • firing employees

    "Just Cause" Employee Termination in Roofing

    See More
  • federal regulations

    Feds Increase Scrutiny of Employer Handbook Provisions

    See More
×

Be in the forefront of the roofing industry!

Join thousands of professionals today. Shouldn’t you know what they know?

JOIN NOW!
  • RESOURCES
    • Advertise
    • Contact Us
    • Directories
    • Store
    • Want More
  • SIGN UP TODAY
    • Create Account
    • eMagazine
    • eNewsletter
    • Customer Service
    • Manage Preferences
  • SERVICES
    • Marketing Services
    • Reprints
    • Market Research
    • List Rental
    • Survey/Respondent Access
  • STAY CONNECTED
    • LinkedIn
    • Facebook
    • Instagram
    • YouTube
    • X
  • PRIVACY
    • PRIVACY POLICY
    • TERMS & CONDITIONS
    • DO NOT SELL MY PERSONAL INFORMATION
    • PRIVACY REQUEST
    • ACCESSIBILITY

Copyright ©2025. All Rights Reserved BNP Media.

Design, CMS, Hosting & Web Development :: ePublishing