Search form

NLRA Handbook Disclaimers May Be Effective After All, Board's General Counsel Suggests

By Philip B. Rosen and Howard M. Bloom
  • December 27, 2012

A recent Memorandum from the National Labor Relations Board’s General Counsel's Office Division of Advice may cause employers to consider including a National Labor Relations Act-related disclaimer in their employee handbook or human resources policies. 

In Cox Communications, 17-CA-087612 (2012), the employer’s social media policy contained three provisions, the legality of which had been challenged by an employee who had been terminated for violating the policy. The employee filed an unfair labor practice charge against the employer alleging the policy was unlawful under the NLRA and, therefore, his termination for violating the policy also was unlawful. Following investigation of the charge, the Board's Regional office asked the Division of Advice for an opinion on whether to issue a complaint. 

 The Division decided the questionable provisions did not violate the NLRA because they would not “reasonably tend to chill employees in the exercise of their Section 7 rights.” More notably, however, the Division also discussed the inclusion of the following disclaimer (which it called a “savings clause”) in the policy:

Nothing in Cox’s social media policy is designed to interfere with, restrain, or prevent employee communications regarding wages, hours, or other terms and conditions of employment. Cox Employees have the right to engage in or refrain from such activities.

Regarding the effect of the disclaimer on the legality of the three questionable provisions, the Division of Advice noted:

[The] . . . savings clause . . . further ensures that employees would not reasonably interpret any potentially ambiguous provision in a way that would restrict Section 7 activity.

This appears to be the first time an NLRA disclaimer has been given any weight in an agency determination about a social media or other employer policy. The Division has reviewed at least one other, less-specific disclaimer (i.e., the policy “will be administered in compliance with applicable laws and regulations . . . including the National Labor Relations Act”) and decided it was ineffective to cure ambiguities in an employer rule. Unlike that disclaimer, however, the Cox provision specifically described a key element of Section 7 rights – the right of employees to communicate about “wages, hours, or other terms and conditions of employment.”

Although it is clear the Division would have decided the policy in Cox was lawful in any event, the disclaimer adds a distinctive note to its approval. For that reason, employers should consider including similarly specific language in particular policies that may raise legal concern under the NLRA. (Since the disclaimer was included in a specific policy, it remains an open question whether the Division of Advice would comment favorably on a similar disclaimer that is included only at the beginning or end of a handbook.) However, the inclusion of this disclaimer is not a substitute for a thorough legal review of employer policies and rules for NLRA compliance.

If you have any questions about this or other workplace developments, please contact the Jackson Lewis attorney with whom you regularly work. 

©2012 Jackson Lewis P.C. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of Jackson Lewis.

This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.

Jackson Lewis P.C. represents management exclusively in workplace law and related litigation. Our attorneys are available to assist employers in their compliance efforts and to represent employers in matters before state and federal courts and administrative agencies. For more information, please contact the attorney(s) listed or the Jackson Lewis attorney with whom you regularly work.

See AllRelated Articles You May Like

January 17, 2017

Kentucky Passes Right-to-Work Law: FAQs on What This Means to Kentucky Employers and Their Employees

January 17, 2017

Kentucky has passed House Bill 1, the Kentucky Right to Work Act, making Kentucky the 27th state to adopt right-to-work legislation. The January 7, 2017, passage of the Kentucky Right to Work Act provoked a passionate debate between the business and union community (video of the Governor Matt Bevin’s testimony is available here... Read More

January 13, 2017

Supreme Court to Review Validity of Class Action Waivers in Employment Arbitration Agreements

January 13, 2017

The U.S. Supreme Court has agreed to decide whether class action waivers in employment arbitration agreements violate the National Labor Relations Act (“NLRA”). The Supreme Court’s action promises the much-anticipated resolution of the circuit split on the issue. The Court on January 13, 2017, granted certiorari in... Read More

January 10, 2017

2017: The Year Ahead for Employers

January 10, 2017

An executive summary of recent changes in workplace law and a look ahead to 2017. Read More

Related Practices