Article Recent Developments in Handbook Law, Required Reading for All Utah Employers

• Publication year: 2015
• Pages: 47
• Citation: Vol. 28 No. 6 Pg. 47

Article Recent Developments in Handbook Law, Required Reading for All Utah Employers Vol. 28 No. 6 Pg. 47 Utah Bar Journal December, 2015

November, 2015

Jeff Holdsworth, J.

The N.L.R.B. Issues a Memorandum Relating to Handbooks

One misconception about the National Labor Relations Act (NLRA or the Act) is that the Act applies only to unions. Operating under this misconception, and because the State of Utah lacks a strong union influence, many Utah employers pay little to no attention to the NLRA, or the National Labor Relations Board’s (NLRB) guidance. Section 7 of the NLRA (dealing with concerted activity) covers both unionized and non-unionized employers. On March 18, 2015, in an effort to respond to problems arising in the increasingly non-unionized workforce, Richard F. Griffin, Jr., General Counsel for the N.L.R.B. issued Memorandum GC 15-04.

Memorandum GC 15-04 provides guidance for employers with regard to their handbooks and policy manuals. Employers should pay special attention to the NLRB’s new guidance – as many of the stock phrases and provisions found in employer handbooks today, may be considered unlawful under sections 7 and 8(a)(1) of the NLRA.

Memorandum GC 15-04 announced to employers that policies which may have the effect, or even the appearance, of “chilling” an employee’s rights under section 7 of the NLRA (rights to engage in concerted activity) will likely violate section 8(a)(1) of the NLRA. In Lutheran Heritage Village-Livonia, 343 N.L.R.B. 646 (2004), the N.L.R.B. announced 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.” Id. The N.L.R.B. has also held that even if employees could reasonably construe the rules in their employer’s handbooks to prohibit section 7 activity, the rules will be found unlawful. See id; see also Memorandum GC 15-04, at 2. The NLRB’s Memorandum GC 15-04 draws several conclusions that, unless carefully addressed, have the potential to cause employers – and their counsel, much heartburn.

The NLRB’s decisions have demonstrated that there is a fine line between which handbook provisions may be considered lawful and unlawful. For example, the handbook provision: “Each employee is expected to work in a cooperative manner with management/supervision, coworkers, customers and vendors,” was considered to be lawful, Memorandum GC 15-04, at 9 (citing Copper River of Boiling Springs, LLC, 360...