Aggressive new federal labor rules on employee speech leave companies baffled

Businesses across the country are flipping through their employee handbooks trying to determine what has to be changed to comply new federal rules.

It is not an easy task, company lawyers say, because the new rules are often vague and confusing.

In many cases, it is difficult to know what is the difference between language the government now says is prohibited and what is acceptable. For example, the new federal rules say that a company policy to "avoid the use of offensive, derogatory, or prejudicial comments" is unlawful, while a rule prohibiting "use of racial slurs, derogatory comments, or insults" is acceptable.

"To me, many of the examples the board gives beg the question, 'Well, what is wrong with that and what is right with this?' If they were trying to provide a practical guide to employers, it seems to me that they failed in that regard," said Howard Kurman, a Baltimore management-side lawyer.

The rules were included in a March 18 memorandum from the National Labor Relations Board's general counsel to the agency's regional directors. The board enforces federal labor laws.

The memo concerns protecting workers' "Section 7" rights — the right to take part in union-related activity — and addresses rules in company employee handbooks that may infringe on this right. The memo says in effect that any company rule that an employee could in any way interpret as limiting their ability to engage in union and union-related activities is no longer permissible.

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