The National Labor Relations Board is back in action again after being in limbo for a year-plus as Republicans and Democrats squabbled over President Obama's appointees. And HR professionals had best begin combing through their employee handbooks to root out anything that might smack of vagueness, coercion, infringements on personal rights and more.

So says labor law expert Steven M. Bernstein, partner, Fisher & Phillips. Bernstein represents employers in a wide range of labor matters and recently expressed some strong views about the NLRB's direction in a SHRM article on the board.

Bernstein predicted that the full-force NLRB will be examining employee handbooks, looking for:

  • Vague or ambiguous language.
  • Advance authorization before engaging in the conduct at issue.
  • Broad categories of prohibited or required conduct.
  • Any language purporting to restrict internal wage or disciplinary discussion.
  • Use of generic terms such as "unprofessional," "misleading" or "inappropriate."
  • Language compelling all employees to confine their concerns to management.
  • Blanket confidentiality provisions within the context of internal investigations.
  • At-will disclaimers precluding modification by anyone at any time.
  • Access rules reserving managerial discretion or requiring advance approval.
  • Solicitation restrictions extending beyond working time and working areas.

Why is the NLRB boring into handbooks instead of building a caseload of union-management disputes to resolve? Simple: There aren't many of those around any more.

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Dan Cook

Dan Cook is a journalist and communications consultant based in Portland, OR. During his journalism career he has been a reporter and editor for a variety of media companies, including American Lawyer Media, BusinessWeek, Newhouse Newspapers, Knight-Ridder, Time Inc., and Reuters. He specializes in health care and insurance related coverage for BenefitsPRO.

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