Tuesday, April 19, 2016

Is it time for a new NLRB rule on handbook policies?

Last week, in William Beaumont Hosp. [pdf], the NLRB issued yet another decision holding that an employer’s work rules unreasonably infringed on employees’ rights to engage in protected concerted activity. Not newsworthy, right?

What is newsworthy, however, is that the lone Republican currently serving on the NLRB, Philip Miscimarra, used the decision as an opportunity to publish a scathing dissent calling for a complete re-write of the NLRB’s rules on employer policies and protected concerted activity.

The 18-page takedown is a must read for any employer frustrated with its inability to draft facially neutral, reasonably based work rules.

What does he hope to see in a future rule?
What standard should replace Lutheran Heritage to evaluate facially neutral rules? The Board must carry out what the Supreme Court has repeatedly described as the Board’s duty when determining whether particular work requirements unlawfully interfere with NLRA-protected rights. The Board has the “duty to strike the proper balance between …asserted business justifications and the invasion of employee rights in light of the Act and its policy.” Therefore, when evaluating a facially neutral policy, rule or handbook provision, I believe the Board must evaluate at least two things: (i) the potential adverse impact of the rule on NLRA-protected activity, and (ii) the legitimate justifications an employer may have for maintaining the rule. The Board must engage in a meaningful balancing of these competing interests, and a facially neutral rule should be declared unlawful only if the justifications are outweighed by the adverse impact on Section 7 activity. When engaging in this analysis, the Board should differentiate among different types of NLRA-protected activities (some of which might be deemed central to the Act and others more peripheral), and the Board must recognize those instances where the risk of intruding on NLRA rights is “comparatively slight.” Similarly, the Board should distinguish be- tween substantial justifications—those that have direct, immediate relevancy to employees or the business—and others that might be regarded as having more peripheral importance. The Board should make reasonable distinctions between or among different industries and work settings, and it should take into consideration particular events that might be associated with a specific rule. Finally, the Board may find that an employer may lawfully maintain a particular rule, notwithstanding some possible impact on a type of protected Section 7 activity, but conclude that the rule cannot lawfully be applied against employees who engage in NLRA-protected conduct.
The U.S. Chamber of Commerce calls the NLRB’s current position on workplace policies the Theater of the Absurd. That description is spot on target. Bravo to Member Miscimarra for using his platform to call for a reform of a policy that splits hairs between policies that prohibit “abusive or threatening language to any- one on Company premises” (lawful) and that prohibit “loud, abusive, or foul language” (unlawful). Sadly, we are going to have to wait for a Republic White House to appoint more Miscimarra-thinking members before we can expect to see any meaningful change on this issues that is of such importance to all employers.

[Hat tip: Employment Law 360 – sub. req.]