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Ask The Lawyer By: Daniel A. Gwinn, Esq

| February 20, 2018

HANDBOOK PROHIBITS ‘DISRESPECTFUL CONDUCT’ – WHAT’S WRONG WITH THAT?

QUESTION: My company recently revised its Employee Handbook. In addition to providing rules on handling discrimination and sexual harassment and setting out the procedures for obtaining benefits, the handbook establishes rules for employee conduct. One of these rules prohibits “insubordination or other disrespectful conduct” toward managers or supervisors. A member of my HR staff said that rule could be viewed as illegal. Can you explain to me what’s wrong with asking workers to be polite to their supervisors?

ANSWER: If being “polite” is all you want, you need to revise your handbook to make sure it passes legal muster under Section 7 of the National Labor Relations Act (NLRA), which protects workers’ rights to self-organization and “to engage in other concerted activities for the purpose of … mutual aid or protection.” This right to collective action applies whether or not your workforce belongs to a union. With or without union involvement, workers are entitled to get together to discuss “the terms and conditions of employment.” According to the National Labor Relations Board (NLRB), which enforces the NLRA, barring all “disrespectful” conduct could impinge these Section 7 rights.

In a 2014 case, the NLRB examined a rule very similar to the one in your employee handbook. The rule there stated disciplinary action, including termination, could result for “[i]nsubordination or other disrespectful conduct (including failure to cooperate fully with Security, supervisors and managers.” The NLRB panel had no trouble with the prohibition against insubordination, defined as a “defiance of a workplace superior’s job-related directive,” and said it would not violate the NLRA. But, they did have a problem with a rule barring “disrespectful conduct.” The Board panel said workers might understand the term “disrespectful conduct” to include any form of activity that might be viewed as “insufficiently deferential” to a person in authority. For example, employees might worry that “[t]he act of concertedly objecting to working conditions imposed by a supervisor, collectively complaining about a supervisor’s arbitrary conduct, or jointly challenging an unlawful pay scheme” — all core Section 7 activities – might be viewed as disrespectful and therefore cost them their jobs. Because the handbook rule might have a chilling effect on the employees’ exercise of their NLRA rights, the rule was against the law. In Re Casino San Pablo, 361 NLRB No. 148 (2014)

A more narrowly-tailored rule will put your workers on notice as to exactly what kind of behavior will not be tolerated, without running afoul of the law. An attorney could help you ensure any additional revisions to your employee handbook are comply with the NLRA, and other statutes.

The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinnlegal.com.

Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the person submitting the question and GWINN LEGAL PLLC. To view previous columns, please visit our website.

ASK THE LAWYER
By: Daniel A. Gwinn, Esq

Attorney and Counselor at Law
GWINN LEGAL PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
www.gwinnlegal.com

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