The SESCO Report – February 2016
National Labor Relations Board, General Counsel Issues Employee Handbook Rules
In 2015, the National Labor Relations Board (NLRB) Office of the General Counsel, released a 30-page memorandum providing guidance on employer rules and handbooks. The results of the guidance solidified the NLRB’s increased attention to, and enforcement efforts towards, non-union employers. The bottom line effect restricts employers in a number of areas in regulating employee conduct and confidentiality, thus making it “easier” for unionization.
The following is a brief summary and if you have not had SESCO review and assess your company handbook rules and policies in the past 12 months, it is now time to do so. Please consider:
Policies Regarding Confidentiality As a result of the Counsel’s report, confidentiality policies that specifically prohibit employee discussions of terms and conditions of employment (wages, hours, or workplace complaints), or that employees would reasonably understand to prohibit such discussions are unlawful. Examples of policy terms regarding confidentiality referenced in the General Counsel’s memorandum that were deemed unlawful include the following:
• Do not discuss “customer or employee information” outside of work, including “phone numbers and addresses.”
• “Never publish or disclose the employer’s or another’s confidential or proprietary information. Never publish or report on conversations that are meant to be private or internal to the employer.”
• “Sharing of overheard conversations at the work site with your co-workers, the public or anyone outside your immediate work group is strictly prohibited. Discuss work matters only with other employer/employees who have a specific business reason to know or have access to such information...do not discuss work matters in public places.”
• Confidential information is “all information in which its loss, undue use or unauthorized disclosure could adversely affect the employer’s interest, image and reputation or compromise personal and private information of its members.”
Policies Regarding Employee Conduct Toward Management
Of course, the National Labor Relations Act (NLRA) protects an employee’s ability to criticize or protest their employer’s labor policies or treatment of employees. Policies restricting these rights may be found to be overbroad, particularly if rules restrict employees from criticizing the employer in public. Examples of policy terms regarding employee conduct toward management referenced in the General Counsel’s memorandum that were deemed unlawful include the following:
• “Be respectful to the company, other employees, customers, partners and competitors.”
• “Do not make fun of, denigrate, defame your co-workers, customers, franchisees, suppliers, the company or our competitors.”
• No “defamatory, libelous, slanderous or discriminatory comments about the company, its customers and/or competitors, its employees or management.”
• Disrespectful conduct or insubordination, including, but not limited to, refusing to follow orders from a supervisor or designated representative.
• Refrain from any action that would harm persons or property or cause damage to the company’s business or reputation.
Polices Regarding Employee Conduct Towards Co-Workers
Under the NLRA, employees generally have a right to argue and debate with each other about unions, management and the terms of conditions of employment. These discussions can become contentious, but remain protected in most instances even if they include intemperate, abusive and inaccurate statements. Thus, employers cannot generally ban these types of discussions. Examples of policy terms regarding employee conduct toward coworkers referenced in the General Counsel’s memorandum that were deemed unlawful include the following:
• Don’t pick fights online.
• Don’t make insulting, embarrassing, hurtful or abusive comments about other company employees online, and avoid the use of offensive, derogatory or prejudicial comments.
• Show proper consideration for others’ privacy and for topics that may be considered objectionable or inflammatory, such as politics and religion.
• Do not send unwanted, offensive or inappropriate emails.
• Material that is fraudulent, harassing, embarrassing, sexually explicit, profane, obscene, intimidating, defamatory, or
otherwise unlawful or inappropriate may not be sent by email.
Policies Regarding Employee Conduct Toward Third Parties
Again, the NLRA protects an employee’s right to communicate with the news media, government agencies or other third parties about wages, benefits and terms and conditions of employment. Handbook rules that reasonably could read to restrict such communications may be deemed unlawful. Examples of policy terms regarding employee conduct toward third parties referenced in the General Counsel’s memorandum that were deemed unlawful include the following:
• Employees are not authorized to speak to any representatives of the print and/or electronic media about company matters unless designated to do so by HR, and must refer all media inquiries to the company media hotline.
• Associates are not authorized to answer questions from the news media...when approached for information, you should refer to the person of the employer’s media relations department.
• All inquiries from the media must be referred to the Director of Operations and the corporate office, no expectation.
• If you are contacted by government agencies, you should contact the law department immediately for assistance.
Policies Regarding Logos, Copyrights and Trademarks
Broadly banning use of intellectual property without clarification generally will be found unlawful. Such examples as reference in the General Counsel’s memorandum that were deemed unlawful include the following:
• Do not use any company logos, trademarks, graphics or advertising materials in social media.
• Do not use other people’s property, such as trademarks without permission in social media.
• Use of the employer’s name, address or other information in your personal profile is banned.
• Company logos and trademarks may not be used without consent.
Policies Regarding Photography and Recording
Under the NLRA, employees generally have the right to photograph and make recordings in furtherance of protected concerted activity, like photographing health and safety violations or documenting unfair labor practices. Examples of policy terms regarding photography and recording referenced in the General Counsel’s memorandum that were deemed unlawful include the following:
• Taking unauthorized pictures or video on company property is prohibited.
• No employee shall use any recording device including, but not limited to, audio, video or digital for the purpose of recording any employer operation.
• A total ban on use of possession or personal electronic equipment on an employer property.
• A prohibition on personal computers or data storage devices on employer property.
• Prohibition from wearing cell phones, making personal calls or viewing or sending texts while on duty.
Policies Regarding Leaving Work
Of course, the NLRA protects employees’ right to go on strike. As such, the General Counsel referenced policy terms regarding leaving work that were deemed unlawful include the following:
• Failure to report to your scheduled shift for more than three (3) consecutive days without prior authorization or walking off the job during a scheduled shift is prohibited.
• Walking off the job is prohibited.
• Entering company property without permission may result in discharge.
Conclusion
Obviously, these policy terms as deemed unlawful seem to be commonsense rules and policies within the employer-employee relationship. However, when we understand that the NLRB is a five (5) member board whose parent agency is the Executive Office of the Presidency, we can understand the political realities in relation to employer-employee relations and pro-union sentiment.
However, SESCO has thoroughly reviewed the report of the General Counsel concerning employer rules and what they’ve deemed to be unlawful and subsequently developed employee handbook statements and recommendations
that will address the needs of employers lawfully.
SESCO has developed a handbook checklist for use in assessing and developing employee handbooks. Further, SESCO prides itself on our expertise in reviewing, editing and publishing employee handbooks and policies and procedures manuals not only to ensure compliance with federal and state employment regulations, but also in meeting the needs of employer-employee communications.
4 HR Priorities for 2016
With the new year, it’s important to develop goals to address identified problems from the previous year as well as based on strategic goals. In a recent survey, human resource leaders and consultants reported their top HR priorities for 2016. The following are four (4) priorities that all employers, regardless of size, should consider focusing on.
1. Develop leaders at all levels — Good leaders are hard to find as they are typically fully employed and engaged. But of course, we understand that good leaders are absolutely critical to the success of the employer as well as employees. Among those surveyed by Waggl, 74% identified developing leaders as their top priority in 2016. To develop good leaders, training and development needs to start at every level. This begins with a culture of accountability and education. The implication here for employers is to invest in training opportunities, develop mentoring programs and establish other leadership-development programs. SESCO specializes in leadership development and has a number of tools available for purchase, delivery onsite or delivered by our certified team of professional trainers. SESCO training tools can be viewed at www.sescomgt.com which include:
• Vital Learning (Leadership, Sales, Customer Service, Team Work)
• SESCO’s Leadership Series
• SESCO’s HR Training and Development
Programs
2. Improve team work - Under effective leaders are efficient teams who collaborate to complete tasks. However, teams aren’t communicating and working together as efficiently as they once did. This is due to the number of generations (4) working in the workplace and the lack of collaboration in team members not pulling the weight among the team.
Disfunctional team work is one of management’s top issues and it’s no surprise that 72% of the professionals surveyed
team work, collaboration and trust amongst peers were major priorities for the new year. It’s critical that employers create an organizational culture where trust, open communication, and fairness are emphasized and demonstrated.
Within the survey, employers said that they were interested in creating a more collaborative work environment, but there is a disconnect between management and their employees. So, the takeaway for employers seems to suggest focusing on creating a culture in which roles are clearly defined, employees communicate openly and everyone on the team works together to get the job done right. Team work starts from the top, so get management involved to lead the charge to better collaboration.
Additionally, SESCO strongly suggests and creates systems for employers to support effective team work such as:
• Job descriptions — systems that thoroughly articulate and measure job performance and expectations.
• Compensation systems rewarding effective team work and productivity.
• Team building development and training systems.
3. Find the right talent - It’s always been said that if we find the right person the first time that many of our employee relations issues will not be present. However, employers are struggling to fill talent needs. In the Waggl survey, 71% of managers ranked finding the right talent among one of the top issues that they’ve experienced.
Although managers are looking for talent with advanced skills, most have trouble finding professionals with even the basic skills needed for open positions. On average, one (1) in three (3) skills requested in job postings was a baseline skill, the employer-respondents said, and gaps in these skills exist in nearly every industry and profession.
What we can learn here is that employers need to find a balance between recruiting for baseline and advanced skills. Instead of searching for unrealistic professionals who can do it all, employers should determine which few skills are the most important and focus on screening for those.
SESCO’s recommendation is to use pre-hire assessments and other screening tools to test the skills that matter most. SESCO provides a number of these tools to include:
• Skills Assessment Tests
• Personality Tests
• Background Checks
• Reference Checks
• Behavioral Interviewing Training
• Professional staff who screen and hire for clients
4. Performance reviews — Ineffective performance reviews have been amongst management’s top issues for a long time. But that doesn’t mean that they are going anywhere. Annual performance reviews will remain as one of the basic management/HR systems in most all employers. However, the performance review process normally isn’t recognized as a tool that improves employee and/or organizational success. Most managers as well as employees see the performance review as a meaningless process that they sit through annually. Both managers and employees alike many times avoid and/or dread participating in their reviews.
However, those surveyed by Waggl (97%) stated that listening to employees and incorporating ideas was critical to their
success. Indeed the annual performance review doesn’t seem to be cutting it anymore and as such, do not produce the necessary feedback to make a difference with the employee and/or organization.
The lesson here is that employees want and need more feedback for their managers and managers need more input from their valued team. In 2016, it’s useful for employers to focus on facilitating ongoing conversations between employee and management about performance, goals and operational effectiveness. These opportunities include:
• Employee engagement/attitude surveys
• Formal communication systems such as breakfast/lunch meetings, employee focus groups, management by walking around, and many others. In addition to SESCO communication programs, SESCO also specializes in developing and implementing effective job descriptions/performance appraisal documents that bring meaning as well as accountability to both manager and employee performance. These documents called criteria-based job descriptions can bring immediate life to the performance appraisal process as well as in holding employees accountable as well as rewarding employees via compensation.
SESCO Product of the Month
Vital Learning Certified Management Training Programs Through SESCO
LEADERSHIP ESSENTIALS Curriculum
• Coaching Job Skills (online)
• Coaching Job Skills (classroom)
• Communicating Up (classroom)
• Communicating Up (online)
• Delegating (online)
• Delegating (classroom)
• Developing Performance Goals and Standards (online)
• Developing Performance Goals and Standards (classroom)
• Effective Discipline (online)
• Effective Discipline (classroom)
• Essential Skills of Communicating (online)
• Essential Skills of Communicating (classroom)
• Essential Skills of Leadership (online)
• Essential Skills of Leadership (classroom)
• Improving Work Habits (online)
• Improving Work Habits (classroom)
• Managing Complaints (online)
• Managing Complaints (classroom)
• Providing Performance Feedback (online)
• Providing Performance Feedback (classroom)
• Resolving Conflicts (online)
• Resolving Conflicts (classroom)
• Supporting Change (online)
• Supporting Change (classroom)
LEADERSHIP PLUS Curriculum
• Developing and Coaching Others (classroom)
• Developing and Coaching Others (online)
• Hiring Winning Talent (online)
• Hiring Winning Talent (classroom)
• Leading Successful Projects (classroom)
• Motivating Team Members (online)
• Motivating Team Members (classroom)
• Retaining Winning Talent (classroom)
• Solving Workplace Problems (classroom)
Special Thanks to New SESCO Clients!
Lifespan Network
Columbia, MD
The AAM Group
Piney Flats, TN
Gardner, Inc.
Wytheville, VA
Radney Funeral Home, Inc./Langley Funeral Home
Alexander City, AL
Woodway Water Authority
Pennington Gap, VA
SESCO Client Feedback
“The knowledge was superior and I feel confident that our new manual is legally correct plus informative. Brenda did a wonderful job! Becoming a SESCO partner was one of the best things I could have done for FKCU.” ~ Beverly Boling, Manager/CEO — First Kingsport Credit Union
“We are at a place where we are too small to have a full-time HR department, but large enough to need the services of SESCO. Joel makes us feel at ease. Your whole team is a pleasure to do business with.” ~ Beverly Boling, Manager/CEO — First Kingsport Credit Union
SESCO'S Spring Seminar Series 2016
Bristol, VA
March 16-17, 2016
Effective Leader/Manager
Courtyard by Marriott
April 5-6, 2016
Human Resources — The Basic Course
Courtyard by Marriott
May 18, 2016
Human Resources — The Advanced Course
Courtyard by Marriott
Richmond, VA
March 23-24, 2016
Effective Leader/Manager
Virginia Community Healthcare Association
April 13-14, 2016
Human Resources — The Basic Course
Virginia Community Healthcare Association
May 25, 2016
Human Resources — The Advanced Course
Virginia Community Healthcare Association
(SESCO has partnered with one of our valued clients, Virginia Community Healthcare Association, to host our Richmond Seminar Series.)
Click HERE for a Registration Form
State and National Business and Trade Associations, Chambers of Commerce and Human Resource Associations are welcome to contact SESCO to book a professional speaker for annual conventions and seminars. Contact Bill Ford at 423-764-4127 or by email bill@sescomgt.com
