Since August 2021, three of the five members of the National Labor Relations Board (“NLRB” or “Board”) have been appointed by Democratic presidents, including two members appointed by President Biden. Earlier this year, the Democratic majority announced in Stericyle, Inc., 371 NLRB No. 48 (Jan. 6, 2022), that it was requesting briefing on whether
Trump NLRB Shakes Up the Labor World in Striking Down Numerous Obama Board Decisions
It might appear that in some years, the National Labor Relations Board (the Board) issues a series of decisions just as the year comes to a close, but it is not because the Board wants to give out holiday presents (or, from the employer’s perspective for the past several years, multiple lumps of coal). Rather…
NLRB Says “Mere Maintenance” of Employee Handbook Rules May Violate the NLRA
In recent years the National Labor Relations Board (NLRB) has aggressively sought to emphasize that its reach extends beyond solely unionized workforces. On March 18, 2015, NLRB General Counsel Richard Griffin released a 30-page report that provides labor lawyers and HR professionals guidance on what the General Counsel contends is – and is not – a lawful employee handbook rule under the National Labor Relations Act (NLRA). The General Counsel’s report makes clear just how broadly the Board applies its rules, finding fault in a number of common-sense workplace practices regarding confidentiality, criticism of the company, misconduct, communication with the public or the media, conflicts of interest, and a variety of other topics. Non-union employers may be asking, “Why do I care?” But the NLRA applies to every employer (at least those engaged in “interstate commerce,” which is almost everyone).
Virtually anyone – individual employees, union organizers or other non-employees – can (and does) file Board complaints, and one of the first things the NLRB’s investigator will ask you for is your policies. Even if the investigator concludes the charge is without merit, if you are “maintaining” overly broad policies, you may have a fight with the NLRB on your hands – and at the very least you will face a demand to modify the policy and post a notice informing employees of your transgression and your commitment to upholding employee rights to participate in protected, concerted activity. If you’ve got a union lurking (or campaigning), that’s like free (and forced) advertising, telling employees why they need a union.
We’ve written about the NLRB’s scrutiny of employer rules on social media use and off-duty access, but this report is a “one stop shopping” trip for purposes of NLRA compliance. The report (available here) provides real-life examples of allegedly unlawful and lawful policies and the reasoning behind the decisions. And it provides (starting at page 26) what some might view as “model” policies prepared by Wendy’s International LLC and the NLRB pursuant to a Board settlement agreement. You may not like – or decide to adopt – the stance that the General Counsel has taken on these policies, but at least you (sort of) know his position on many handbook policies.
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The Do’s and Don’ts of Employee Handbooks
Employee handbooks can operate as a useful management tool to ensure fairness and consistency in employment practices which in turn may limit an employer’s exposure to unwanted and costly litigation. But if not carefully drafted an employee handbook may unwittingly supply a disgruntled employee with greater ammunition on the legal battlefield. A couple of Utah employers recently…