Monday, May 9, 2022

The NLRB is coming for your handbook (again)

  • Corrective action rules
  • A dress code
  • A prohibition on cell phone use while working
  • A social media policy
  • Confidentiality rules

These are a few of the 19 different polices contained in Starbucks  employee handbook (called its Partner Guide), which the NLRB alleges constitute "interfering with, restraining, and coercing employees in the exercise" of the right of the coffee retailer's employees to form a union under the National Labor Relations Act.

On the one hand, this is latest salvo fired in the most contentious labor battle our country has experienced in decades, which is helping to usher in a golden age of union organizing.

On the other hand, the fact the NLRB filed a complaint challenging what on their face appear to be garden-variety handbook provisions signals that the Board is yet again coming after your handbooks.

From 2010 – 2017, the NLRB waged war against employee handbooks, challenging even the most benign policies as infringing on employees' rights to engage in protected concerted activity. Then, as 2017 came to a close the NLRB did an about face, and in Boeing Co. restored sanity to its assault on handbooks. 

Each of the challenged Starbucks' policies seems to fall under policies Boeing would find to be presumptively lawful — rules that, when reasonably interpreted, do not prohibit or interfere with the exercise of NLRA rights. Yet here we are, with the NLRB challenging their legality on their face anyway. 

It does not appear that the NLRB is alleging that Starbucks discriminatorily applied these facially neutral policies to single-out pro-union employees. That's always been illegal and will remain as such. Instead, it appears that the NLRB is challenging facially neutral workplace policies as unlawful because they can be applied to squash or deter protected concerted activity. And this tells me that the Board is looking to undo Boeing's three-tiered system of handbook policies and to form a new standard that is much less kind to facially neutral handbook policies.

Stay tuned, as this story will continue to develop over the coming months with hearing upcoming on June 14.  A change in Boeing will result in significant work for employers to update their handbooks to come into compliance with whatever this new employer-unfriendly standard looks like.