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Issue link: https://cpapracticeadvisor.epubxp.com/i/528834
June/July 2015 • www.CPAPracticeAdvisor.com 27 FEATURE • CONDUCT TOWARD THE COMPANY AND SUPERVISORS Criticizing or protesting labor policies or employee treatment is also pro- tected under t he N LR A . Conse- quently, rules that either prohibit, or could be inter preted to prohibit, criticism over protected activities are illegal. The report points to rules banning "disrespectful," "negative," "inappropriate" or "rude" conduct towards an employer or manage- ment, without any type of context or clarifcation, as problematic. • CONDUCT TOWARDS COWORKERS Employees also have the right to publicly discuss and criticize their employer's labor policies with each other. Tat's true even if those conver- sations become contentious. So without clarifcation, employers can fnd themselves in trouble for banning "negative" or "inappropriate" conversa- tions between workers. • EMPLOYEE INTERACTION WITH THIRD PARTIES Te NLR also gives employees the right to talk with the media, govern- ment agencies, and other third parties about wages, benefts, and other terms and conditions of employ ment. Employers can still limit who can make ofcial company statements, but rules that could restrict these types of communications can get employers into trouble. • RESTRICTING USE OF COMPANY LOGOS, COPYRIGHTS, AND TRADEMARKS Te 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, leafets, 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 tak ing pictures and making audio and video recordings at work, as well as having cameras and recorders at work. • EMPLOYEES LEAVING WORK Te NLR B 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 inter- preted as banning protected strike actions and walkouts. • CONFLICT-OF-INTEREST RULES Employees have a right to participate in concerted activity to improve th'eir terms and conditions of employment, even when those actions confict with their employer's interests. A s an e x a m p l e , t h e r e p o r t p o i n t s t o employees' r ig ht s to orga n i z e a boycot or protest in front of a com- pany. So rules that could prohibit such activities are unlawful. What to Do Next W hile employers may disagree with many of the NLR B's positions and fndings, the report ofers much-needed c l a r i t y o n ho w t he N L R B v ie w s employee handbook rules. In order to comply w ith this new information, companies need to take several steps. • TALK TO THE EXPERTS Employers should immediately con- sult with their in-house attorneys, outside law firms, and HR depart- ments to review and understand how the NLR B's approach to handbooks could afect them. Te sooner com- panies 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 N LR B included, problems came about because of broad or vague rules t h a t d i d n't c l a r i f y d i f f e r e n c e s bet ween protected and non-pro- tected activity. Employers can head of many headaches by making such d istinctions. A s an exa mple, the N LR B points to r u les rega rd ing employees disclosing "confdential" information. Tose rules are legal as long as they do not refer to informa- tion that involves or could involve terms or conditions of employment, "because employers have a substan- tial and legitimate interest in main- taining the privacy of certain busi- ness information," the report noted. " F u r t h e r m o r e , a n o t h e r w i s e unlawful confdentiality rule will be fou nd law f u l i f, when v iewed i n context, employees would not rea- sonably understand the rule to pro- hibit Section 7 protected activity." • 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 acknowledg- ment should be obtained. Companies should also provide regular training, so employees understand the difer- e n c e s b e t w e e n p r o t e c t e d a n d unprotected activity. Employee handbooks are designed to educate workers and help companies run smoothly—not cause problems with the NLR B. By taking a few steps, e m p l o y e r s c a n m a k e s u r e t h e i r employee handbooks answer questions and clarify expectations, rather than create issues. Richard D. Alaniz is senior partner at Alaniz Schraeder Linker Farris Mayes, L.L.P., a national labor and employ- ment frm based in Houston. He has been at the forefont of labor and employment law for over thirty years, including stints with the U.S. Department of Labor and the National Labor Relations Board. Rick is a prolifc writer on labor and employment law and conducts fequent seminars to client companies and trade associations across the country. EMPLOYEE HANDBOOKS ARE DESIGNED TO EDUCATE WORKERS AND HELP COMPANIES RUN SMOOTHLY—NOT CAUSE PROBLEMS WITH THE NLRB