Handbook Savings Clauses Only Sometimes Saves

Tiffany and Co. jewelry company had handbook policies that violated the National Labor Relations Act. One of Tiffany’s policies (the wages policy) prohibited employees from disclosing “information concerning the wages, benefits, or other terms of employment paid by the Company to employees in general, with respect to specific positions, or specific individuals.” Another policy (the media policy) barred disclosure of names, addresses, and telephone numbers of employees and forbade workers from speaking to media representatives about their employment without the company’s permission.

As a defense, Tiffany’s pointed to the savings clause in its handbook that said, “This Policy does not apply to employees who speak, write, or communicate with fellow employees or others about their wages, benefits, or other terms of employment in the exercise of their statutory rights to organize or to act for their individual or mutual benefits under the National Labor Relations Act or other laws.”

Unfortunately for Tiffany’s, some of their policies were deemed unlawful by the NLRB Administrative Law Judge. But, the savings clause immediately followed the wages policy and turned an unlawful handbook policy into a lawful one because the savings clause “essentially tracks” the unlawful rule, is “proximate to the rule it purports to inform,” and “expressly references the unlawful rule.” The rule was effectively canceled by the savings clause, and Tiffany’s did not commit an unfair labor practice by maintaining the wages policy.

As for the media policy, it was not immediately followed by the verbose savings clause and that clause did not cover all policies in the handbook. Accordingly, it was unlawful. As a warning, though, other cases have ruled that a savings clause, anywhere in a handbook, does not turn an otherwise unlawful policy into a lawful one. It is too soon to determine whether this case is an outlier or the beginning of a new trend, so employers should be mindful to review all their policies to ensure they do not infringe on employees’ Section 7 rights.

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