Original Post: June 25, 2018

The National Labor Relations Board General Counsel Peter Robb’s released a memo on June 6, 2018 that outlined changes to three major categories of rules found in many of our policies or employee handbooks; rules that are generally lawful, provisions warranting individualized scrutiny and rules that are unlawful.  The NLRB will offer far less scrutiny under the Trump administration then we have seen under the Obama administration, in relation to policies and handbooks.  These changes include; civility standards, insubordination rules and prohibitions on taking pictures in the workplace, as shown below:

The 17 changes to employee handbooks:

“Lawful civility rules might state, for example:

  • Behavior that is rude, condescending or otherwise socially unacceptable is prohibited.
  • Disparaging the company’s employees is prohibited.
  • Employees may not post any statements, photographs, video or audio that reasonably could be viewed as disparaging to workers.

Rules against defamation or misrepresentation are generally allowed. Examples of such rules are:

  • Misrepresenting the company’s products, services or employees is prohibited.
  • E-mail messages that are defamatory are prohibited.
  • Disorderly conduct on the employer’s premises and/or during working hours for any reason is strictly prohibited.”[i]

Rules that protect confidential, proprietary and customer information are generally lawful under the new rules.  No-photography rules and no-recording rules are viewed as generally lawful under the current memo issued in early June 2018.

“Provisions Warranting Individualized Scrutiny

Rules that may be subject to board scrutiny include:

  • Broad conflict-of-interest rules.
  • Confidentiality rules broadly encompassing “employer business” or “employee information.”
  • Rules regarding disparagement or criticism of the employer.
  • Policies regulating use of the employer’s name.
  • Rules restricting speaking to the media or third parties, as opposed to speaking to the media on the employer’s behalf.
  • Policies banning off-duty conduct that might harm the employer.
  • Rules against making false or inaccurate statements, as opposed to defamatory statements.

Unlawful Rules

Unlawful rules include confidentiality rules regarding wages, benefits or working conditions.

The following confidentiality rules are unlawful:

  • Employees are prohibited from disclosing salaries and contents of employment contracts.
  • Workers shall not disclose any information pertaining to the wages, commissions, performance or identity of employees of the employer.
  • Employees are prohibited from disclosing to any media source information regarding employment at the employer, the workings and conditions of the employer, or any staff member.”[ii]

Additional unlawful handbook language that can be scrutinized under the new memo is, prohibiting employees from joining outside organizations (example: labor unions) and/or voting on matters concerning the employer.  The Society of Human Resource Management suggest that employers revisit handbook language, policies and procedures that might have changed under the Obama administration, this language might have been deemed unlawful.  Remember, the key word is generally lawful, that does not mean all language or overreaching policies are lawful.  Annually reviewing handbook language is a proactive approach to the major changes we have seen under local, state and federal laws recently.  Remember, we all need to revise our handbooks and policies for the upcoming sexual harassment requirements in New York State and additional local laws in New York City (if you have offices there).  If you are confused on handbook and policy language, seek guidance.  Employee handbooks, policies and procedures are important for all of our organizations and need to be legally compliant, at all levels.

– Matthew Burr, HR Consultant

[i] https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/labor-relations-nlrb-general-counsel-memo-employee-handbooks.aspx

[ii] https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/labor-relations-nlrb-general-counsel-memo-employee-handbooks.aspx

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Published by Mathew W. Burr, MJ-LEL, MBA, MHRIR, GPHR, SHRM-SCP, SPHR, CPHR-INT, Chartered CIPD

Mathew W. Burr, MJ-LEL, MBA, MHRIR, GPHR, SHRM-SCP, SPHR, CPHR-INT, Chartered MCIPD Lean Six Sigma Black Belt ABOUT: Matthew Burr has over 18-years of experience working in the human resources field, starting his career as an Industrial Relations Intern at Kennedy Valve Manufacturing to most recently founding and managing a human resource consulting company; Burr Consulting, LLC, Talentscape, LLC and Co-Owner of Labor Love, a Labor, and Employment Law poster printing company. Prior to founding the consulting firm, the majority of his career was heavy industry manufacturing and healthcare. He specializes in compliance auditing, training labor and employment law, conflict resolution, performance management, labor, and employment relations. Matthew has a generalist background in HR and operations, while providing strategic HR and operational solutions to his clients, focusing on small and medium sized organizations. He works as an Adjunct at Alfred State University, Tompkins Cortland Community College, and Montgomery Community College. He successfully designed an HR Concentration in the business management major that aligned with both SHRM and HRCI certifications, providing opportunities for students to sit for both the SHRM-CP and aPHR certifications upon completion of the degree, concentration, and internship hours as an Assistant Professor of Management at Elmira College (Retired January 2022). Matthew is also the SHRM Certification Exam Instructor, with a current pass rate of 92% on the SHRM-SCP and 83% pass rate on the SHRM-CP and a combined 88% on both exams over a 7-year period of instructing the course (Elmira College, Collin College & The College of St. Rose). Matthew works as a trainer at Tompkins Cortland Community College, Corning Community College, Broome Community College, and HR Instructor for Certification Preparation for the Human Resource Certification Institute (HRCI). He also acts as an On-Call Mediator and Factfinder through the Public Employment Relations Board in New York State, working with public sector employers and labor unions. PUBLICATIONS: Matthew has over 70+ publications including, American Bar Association (ABA) Experience Magazine, Cornell HR Review, Business Insider, New York State Bar Association (NYSBA), PayScale, Society of Human Resource Management (SHRM), and Expert 360 (in Australia). In early 2017, he published his first book, “$74,000 in 24 Months: How I killed my student loans (and you can too!),” proceeded by his second book, which was published in January 2021, “Slay the Student Loan Dragon: Tips and Tricks on How to Conquer the Student Loan Game” and his most recent book, “Unbox Your HR Career” in July 2023. VOLUNTEER WORK: Matthew is currently the New York State Society of Human Resource Management (NYSSHRM) District-Director. EDUCATION & TRAINING: Additional Training & Development:  SHRM Workplace Coaching and Mentoring Recertification Program, 2020  SHRM Foundation Employing Abilities @Work Certificate, 2020  SHRM Foundation Veterans at Work Certificate Program, 2018  Delta County Chamber of Commerce: Delta Force Leadership Program, 2013 FEATURED IN & ON: Matthew was featured on CNN Money, Fast Company, Fits Small Business, Fox News, Magnify Money, Monster.com, My Twin Tiers, Namely, Student Loan Hero, Smart Sheet and CEO Blog Nation, Human Resource Certification Institute (HRCI), Society of Human Resource Management (SHRM). Burr Consulting, LLC Capabilities Statement General Information: Burr Consulting, LLC Owner: Matthew W. Burr Mission Statement: “Strategically Aligning HR as a Partner for the Success of Your Business” Contact Information: Burr Consulting, LLC What's New in HR Blog Talentscape, LLC Labor Love, LLC (Labor Posters) The HR Support Center The Upstate HR Podcast (607)227-4386 Matthew@Burrconsultingllc.com Facebook: Burr Consulting, LLC LinkedIn: Burr Consulting, LLC Twitter: @Burrconsulting Online Certification Verification: Credibly Dun & Bradstreet (D&B) Number: 080776443 NAICS Codes: 541612, 923130, 54161, 541611, 541613, 611430, 541618, 561312, 561311 SIC: 8742, 8748, 9441, 8748001, 8748026 Our Services HR MANAGEMENT New Hire Orientation; Temporary HR Support; Recruiting and Application Tracking; HR Compliance (ADA, FMLA); Employee Handbook; Policy and Procedure; HRIS; HR Audits; Job Profile Design and Revision; HR Key Performance Indicators; EEO Reporting and Classification; State Unemployment Insurance Services TRAINING & TRAINING DEVELOPMENT Organizational Development; Employee Relations; Workplace Violence; Harassment & Sexual Harassment; Union Awareness; Managerial EMPLOYEE & LABOR RELATIONS Employee Relations Training; Conflict Resolution; Mentoring; Workplace Investigations; Labor Contract Costing; Mediation & Arbitration Prep; Fact-Finding; Workplace Investigations; Coaching & Counseling; Performance Reviews; Contingency Plan Development; Contingency Plan Training; State of New York Public Employment Relations Board (PERB)PERB Mediation and Fact-Finding Panels (Albany, NY covering the Elmira, NY Area) HIRING & RECRUITMENT Applicant Tracking Systems; Metric Development; Interview Training; Workforce Planning; Recruitment; Interviews; Job Offers; New Hire Process POLICY & COMPENSATION Group Plans – Healthcare, Dental, Vision, Group Life, Short- and Long-Term Disability; Retirement – 401(k), Profit Sharing, Roth; Workers Compensation; Total Compensation Design and Strategy; Deferred Compensation Plans; Salary Surveys; Reward Systems; Online Payroll; Customized Payroll Processing; Employee Self Service; Customized Reporting HR COMPLIANCE MATERIALS Burr Consulting, LLC is excited to announce a new partnership with Labor Love LLC, expanding our services to include HR printed materials compliant with industry standards.

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