Employee handbooks have long been an essential workplace tool. Regardless of size, all employers should maintain a handbook. Handbooks often provide an employer’s history as well as its mission statement and guiding philosophy. They spell out the rules what is expected of employees and what the employer will provide in return. They have become ubiquitous and for the most part non-controversial. However, with the current majority on the National Labor Relations Board (NLRB or Board) and even more so its General Counsel, employee handbooks may once again become a potential source of liability for unsuspecting employers.
The National Labor Relations Act (NLRA or Act) protects both the “union” and “concerted” activities of employees. In recent years, with union activity substantially diminished, the NLRB has focused a great deal of time and attention on issues involving what are referred to as “concerted protected activities.” The term refers to employees acting together (in concert) on matters related to their terms and conditions of employment. Employees have the right to discuss and engage in advocacy regarding workplace concerns and to act for “mutual aid or protection.” It includes not only employees acting as a group, but also a single employee speaking or acting on behalf of himself and others. Any employer interference with such concerted, protected activity is considered a violation of the rights of employees set forth in Section 7 of the NLRA.