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Riding the NLRB Roller Coaster

The National Labor Relations Board (NLRB) is among the most political agencies in the federal government. New presidents may make their own appointments to the five-member NLRB board and quickly reverse the policies and strategies of a predecessor.
 
One such reversal initiated by the Trump Administration has come in employee handbooks.
 
The NLRB in recent years became involved in deciding what is appropriate for a company handbook, regardless of whether the company had a union.
 
The NLRB issued rulings based in Section 7 of the law, focusing on: The NLRB surprised employers with the breadth of its rulings and their impact on non-unionized workplaces. The previous NLRB was concerned that neutral employer statements in an employer handbook on these topics could be biased against the right of employees to form a union. 
 
Section 7 of the National Labor Relations Act (NLRA) guarantees employees "the right to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for collective bargaining or other mutual aid or protection." 
 
What that statutory language means in the context of this new guidance is that the NLRB provides union and nonunion employees with legal protections for “protected concerted” activity. That covers activity that generally occurs when two or more employees act together to improve wages or working conditions. The protection may even extend to just one employee when the single employee’s action involves co-workers or the single employee acts on behalf of others.
 
In December 2017, a newly Republican majority NLRB issued a decision stating that it would change the standard on how it would review a company’s apparently neutral policies. The NLRB’s newly appointed General Counsel issued a guidance this month outlining the agency’s new position on employee handbooks.  
 
The NLRB will now use two standards when addressing an apparently neutral company policy: If the justifications outweigh the potential impact, then the policy would be deemed lawful.
 
What does it mean for your handbook? 
 
The General Counsel’s June guidance provides that policies that do not explicitly restrict protected conduct will no longer be presumed to be illegal. 
The document provides some examples of common workplace policies it would consider to be lawful and unlawful:
 
Presumed Lawful
 
Neutral civility policies, no-photography policies, policies against insubordination or improper conduct, policies protecting confidential information or use of employer logos, and policies against disruption, defamation and disloyalty would be viewed as acceptable and would not adversely impact any would-be union rights. 
 
For example, a rule prohibiting “behavior that is rude, condescending or otherwise socially unacceptable,” would likely be viewed as okay as it is unlikely to limit concerted activity vis-a-vis an employer’s legitimate interest in promoting appropriate behavior in the workplace. 
 
Some handbook policies that prohibit protected concerted activity may be warranted. But employers adopting such a policy should be careful to avoid violating state law. For example, a policy limiting employees’ rights to talk about their wages would violate the new pay equity law in Massachusetts that takes effect on July 1, 2018.
 
Presumed unlawful
 
Policies that are likely to be viewed as not neutral, such as a policy prohibiting employees from discussing information pertaining to their wages or other terms and conditions of employment, will remain unlawful. 
 
It appears the NLRB will now consider the context of the rule at issue and its overall purpose, rather than looking only at the rule’s possible impact on potential concerted activity. The approach may be subject to a legal challenge, so any company seeking to implement new policies should proceed with caution when revising any handbook policies. 
 

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