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Posts Tagged ‘employee handbooks’

NLRB Decisions are Trending Pro-Employer

Posted on: February 27th, 2019

By: Amy C. Bender

The National Labor Relations Board (“NLRB”) under the Trump administration is showing a return to more conservative, employer-friendly interpretations of the laws regarding employees’ rights to engage in concerted activity to improve wages and working conditions. As a reminder, these protections apply to almost all private-sector employees, regardless of whether they belong to a union.

Independent Contractors – The NLRB recently issued a decision returning to the pre-Obama era, employer-friendly “common law agency” test for determining whether a worker is an employee or an independent contractor. This ruling makes it easier for employers to classify workers as independent contractors, which benefits employers since independent contractors do not have certain rights that employees have, such as the right to unionize (and employers do not have to pay taxes or insurance on independent contractors, among other distinctions).

Joint Employers – The NLRB recently closed the period to submit comments on its proposed rule regarding the standard for when two entities are considered joint employers. Under the proposed rule, an entity will be deemed a joint employer only if it has and exercises substantial, direct, and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine. The current standard from the Obama administration allows a finding of joint employment if an entity exercises indirect control or merely has the contractual right to exercise control, which can result in increased liability for businesses.

Employee Handbook Rules – The NLRB recently issued guidance on when an employer’s workplace policy interferes with employees’ rights to engage in protected concerted activity. The guidance provides that a policy will be placed into one of three categories (generally lawful, warrants individualized scrutiny, or unlawful) and be subject to a balancing test between the policy’s negative impact on employees’ ability to exercise their rights and the policy’s connection to employers’ right to maintain discipline and productivity in their workplace. This guidance provides employers more clarity and detail on how to craft lawful policies and also makes clear that policies will be analyzed to determine the impact they would have (and not just conceivably could have) on employees’ rights.

These developments signal good news for employers, and let’s hope this trend continues.

For questions or assistance in reviewing or preparing your workplace policies, contact Amy Bender at 770-818-1421 or [email protected]

Gone In A Flash: NLRB Overrules Employee Handbook Standard

Posted on: December 20th, 2017

By: William E. Collins, Jr.

On December 14, 2017, in a case involving the Boeing Company, the National Labor Relations Board (“NLRB”) overruled the Lutheran Heritage workplace policy standard that stood for over 13 years, and ushered in a new standard for workplace policies. This decision is a significant shift in labor policy, leaving many hopeful that the new standard will provide consistency and give employers a clear picture of compliance.

Under the now overruled Lutheran Heritage standard, policies, rules, and handbook provisions that appeared neutral still violated the National Labor Relations Act (“NLRA”) if an employee could “reasonably construe” the policy to prohibit protected activity. As you can imagine, discerning what an employee would “reasonably construe” often led to puzzling results.

Departing from the “reasonably construed” standard, the Boeing decision sets out that an employer’s rule violates the NLRA only if the reasonable interpretation of the policy would potentially interfere with an employee’s ability to engage in protected activity.  The NLRB will look at two factors:

(1) the nature and extent of any potential impact on the protected activity; and

(2) the legitimate justifications associated with the rule.

Under this standard, the NLRB will categorize employer rules in one of three categories:

 

 

Category

Explanation

Category 1 The rule is lawful to maintain.

The rule is lawful because:

(a) when reasonably interpreted the rule has no tendency to interfere with the ability to engage in protected activity; or

(b) while the rule may have some tendency to interfere with an employees rights, the risk of interference is outweighed by the corresponding justifications.

Category 2 It is unclear whether the rule, as a general matter, would prohibit or interfere with an employee’s right to engage in protected activity. These rules warrant “individualized scrutiny” to determine if there is interference and whether the interference is outweighed by the specific justifications in the case.
Category 3 The rule is unlawful. The rule prohibits or limits an employee’s right to engage in protected activity and that limitation is not outweighed by the justifications.

 

Applying this new standard, the NLRB held that the Boeing “no-camera” policy was a Category 1 policy. While the policy requiring a camera permit to take pictures inside Boeing’s facilities could interfere with protected activity, the NLRB found that the justification for the rule outweighed this risk because it serves to protect information that is proprietary and involves national security.

While this more objective standard should remove some of the guesswork, employers are wise to revisit their employee handbooks to determine whether their policies fall into Category 1, or are at least defensible under Category 2. As you prepare your 2018 employee handbooks, members of the FMG National Employment Law Practice Group are available to assist your organization review and finalize these documents.

If you have any more questions or would like more information, please contact Will Collins at [email protected].