Tuesday, December 8, 2015

U.S. Chamber takes on the NLRB’s Theater of the Absurd

waiting-for-godotIf you’ve been reading my blog for any length of time, what I am about to tell you should not come as a shock—I’m not a huge fan of the current iteration of the NLRB.

Yes, labor unions have a right to exist, and, yes, employees have the right to join them, and, yes, unions have the right to collectively bargain for wages, hours, and other terms and conditions of employment. When the NLRB operates correctly, it balances the rights of employers, unions, and employees to maintain industrial peace. Currently, the NLRB is not operating correctly.

My main critique of the NLRB is not with its handling of the 7% of the American workforce that is collectively bargained (although that has issues too), but instead with its handling of the other 93%. The NLRB has waged a war over the past five years on the issue of protected concerted activity, and nowhere do the NLRB’s opinion and my opinion differ more than over the issue of employee handbooks and workplace policies.

I am not the only critic of the NLRB’s attempt to encroach on facially neutral, garden variety employment policies. The U.S. Chamber of Commerce has joined the debate. It has published a scathing 43-page critique of the NLRB’s actions in this arena, fabulously titled, Theater of the Absurd: The NLRB Takes on the Employee Handbook [pdf].

The U.S. Chamber analyzes the NLRB’s positions across seven key areas of handbook policies:

  • Confidentiality of workplace investigations
  • Employee misconduct
  • Communications and non-disparagement
  • Protection of intellectual property and confidentiality of company information
  • At-will disclaimers
  • Non-solicitation
  • Dress codes

I’ll conclude by leaving with the well-written thoughts of the U.S. Chamber in its report, which summarizes this issue best:

Through a series of decisions and official guidance, the NLRB has undertaken a campaign to outlaw heretofore uncontroversial rules found in employee handbooks and in employers’ social media policies—rules that employers maintain for a variety of legitimate business reasons…. [M]any of the Board’s decisions of late seem to run counter to any balanced reading of the NLRA and to simply fly in the face of common sense…. The NLRB has gone to outlandish lengths to find commonsense workplace policies unlawful for violating Section 7 rights, even scouring employee handbooks to find purported violations in cases where the handbook has nothing to do with the underlying charge.

By interpreting the NLRA’s Section 7 protections so broadly, the NLRB has increasingly interfered with employers’ ability to manage their own workplaces, often to the detriment of employees themselves. The result has become a theater of the absurd, in which Board decisions issued by bureaucrats specializing in increasingly abstract theories of labor law run counter to the real-world experiences and necessities of the modern workplace. As a result, the Board’s irrational interpretations of the law have created a serious headache for employers and employees looking for stability and common sense in labor relations.