In recent years the NLRB has turned its attention to employee handbook policies and declared that certain policies can discourage “protected concerted activity”. You should always have an attorney review your policies because the NLRB is constantly examining both nonunion and union environments. Here are some of the policies that may come under attack:

1. Confidentiality. Confidentiality clauses that are overly broad and prohibit disclosing personnel or employee information, such as pay or discipline, could violate the NLRA because employees have the right to discuss their terms and conditions of employment.
2. Positive Work Environment. Because employees have the Section 7 right to criticize their employer’s treatment of employees, a policy that could be read to discourage employees from doing so would violate the NRLA. Policies that prohibit “negative” or “inappropriate” discussions among employees may violate the NLRA because employees have the right to argue amongst each other about unions, the company, and their terms and conditions of employment.
3. At-Will Employment Provision. An at-will employment provision that states the at-will employment relationship cannot be amended or modified in any way could violate the NLRA because it may lead employees to believe it would be futile to attempt to organize to change their at-will status.
4. No Disruption Provision. Policies that prohibit employees from causing or creating a disruption during working hours could be read to discourage an employee from participating in a meeting or other protected Section 7 activities.
5. Use of Employer E-mail Systems. The NLRB has ruled that employees have the right to use their employer-provided e-mail account during non-working time for non-business purposes, including activities covered by Section 7. Employers should ensure their e-mail policy permits such use.
6. Arbitration Agreements. The NLRB has ruled that agreements that require employees to waive class or collective action in favor of arbitration violate the NLRA.
7. Social Media. Social media is treated similarly to other communications between employees, so employers should be careful to craft policies that are not overbroad or appear to limit an employee’s Section 7 rights (e.g., courtesy policies or limiting who employees can friend).
8. English-Only Policies. The NLRB has found that provisions could be overbroad when requiring employees to use only English when near customers, conducting business with co-workers, or while on duty. The Board found that the lack of clarity around the time and location of the language ban could discourage employees from exercising their Section 7 rights in their native language.