Philip Miscimarra is mad as hell, and you should be too!

NLRB Member Philip Miscimarra is mad as hell about the Board’s current position on employee-handbook policies and protected concerted activity, and he’s not gonna to take this anymore.

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.

NLRB judge shoots down employee separation agreement as overly broad

Employers prefer finality when they pay an employee severance at the end of employment. One way employers sure up this finality is by obtaining a broad release of claims and covenant not to sue from the employee. But, that is not the only way. Employers use of variety of terms in separation agreements to try to ensure that the agreement is the last they will hear from the employee. That is, unless the employee runs to the NLRB, which seems to believe that there isn’t a policy that doesn’t violate the Board’s rules on protected concerted activity.

Is your employee handbook a contract of employment? Well, does it have a disclaimer?

Employee handbooks come in all shapes and sizes. For example, some employers have policies that create a probationary period for employees during the initial few months of employment. Some employers have progressive discipline policies. Some grant formal appeal rights to employees who are disciplined or terminated. And some set forth terms of compensation, benefits, and time-off.

Is your handbook a contract of employment, or a compilation of discretionary policy statements? The answer depends on whether your handbook has a disclaimer telling employees that they are at-will and cannot rely on the handbook as a contract.

NLRB narrows employer property rights in key solicitation decision

One of an employer’s best tools to stave off labor unions and their organizing campaigns is a no-solicitation policy. It keeps employees focused on work during working hours, and keeps non-employees (including, but not limited to, union organizers) off your property and out of your workplace.

Yet, over the past couple of years, the NLRB has narrowed employers’ no-solicitation rights. For example, employer email systems must now be open for union-related activities during non-working time.

What about low-tech solicitations? Conventional wisdom used to be that employers could prohibit solicitations in work areas during working time and non-working time. Does this work-area rule still hold?

Can an employer prohibit an employee from job hunting during FMLA leave?

Earlier this week, an employee out on FMLA leave posed the following question to the Evil HR Lady:

While I am out for surgery, I was informed of a new job in another hospital. It looks like no one has applied for the position.… Can I apply for this job while I am on leave? What is the consequence of doing so? Can they take my pay back? On one of the FMLA paperwork, it states no job hunting while on FMLA. Is that true? I do not want to be in some legal battle.

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

If 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.

Are you prepared for an active shooter at your workplace?

Today’s post was going to be about accommodating different holiday traditions at work, but that post will have to wait. Yesterday, San Bernardino happened.

It’s not right that we have to think about how to respond if an active shooter enters your workplace. It’s not right that the phrase active shooter is even part of our vocabulary. But, we do, and it is. And your business needs to know how to respond in the event this evil enters your business.

Thankfully, your friendly neighborhood Department of Homeland Security has put together a guide on how to respond to an active shooter [pdf].

Should you allow employees to shop online from work?

Today is Cyber Monday, the day online retailers promote their (alleged) deepest holiday discounts. It is estimated that more than 125 million Americans will take advantage of these sales and shop online today. And, many, if not most, of them will do so from work.

The latest available numbers suggest that more and more companies are allowing employees to shop online from work. As of 2014, 27% of employers permit unrestricted access to employees shopping online while at work, up from 16% in 2013 and 10% and 2012. Meanwhile, 42% allow online shopping but monitor for excessive use, while 30% block access to online shopping sites. Similar data is not yet available for 2015, but one can assume that these numbers have continued to trend towards greater access for employees.

Yet, just because companies allow a practice to occur does not mean it makes good business sense. Should you turn a blind eye towards you employees’ online shopping habits, not just today, but across the board? Or, should you permit more open access?

Everything you want to know about employee holiday pay (but are afraid to ask)

Yesterday I said that I’d be back next week, but then I checked the analytics for my site and noticed a huge spike for a post that digs deep into the archives: 8 things you need to know about holiday pay.

So, since tomorrow is Turkey Day, with most businesses closed, the magic of a quick cut-and-paste brings you everything you wanted to know about holiday pay for your employees.

For those of you who have Thursday and Friday off, enjoy your holiday weekend. Eat, drink, shop, be merry, and, most of all, enjoy your families and be thankful for all that you have.

What can go wrong when co-workers date? A lot.

True confession time. I watch The Voice. It’s not like it’s at the top of my DVR, but, my remote always seem to stop on NBC between 8 and 10 on Monday and Tuesday nights. (My pick to win this season: Amy Vachal). So, when I heard that Team Shelton and Team Gwen had formed one team outside of work, I thought, “What a great opportunity to write a blog post on office romances.” (This is how the mind of blogger works).

What can do wrong with office romances? As it turns out, a lot. So, in the spirit of The Voice, here’s 10 reasons co-workers shouldn’t turn their chairs for each other.

NLRB provides employers a roadmap to a legally compliant off-duty access policy

Can an employer lawfully limit non-employees’ access to its facility? On its face, such a question might seem silly. After all, an employer should be able to control its property, right? What about access by union organizers? Does this wrinkle change the answer?

In Marina Del Rey Hosp. (10/22/15) [pdf], the National Labor Relations Board considered the following access policy:

Off-duty employees may access the Hospital only as expressly authorized by this policy. An off-duty employee is any employee who has completed or not yet commenced his/her shift.

An off-duty employee is not allowed to enter or re-enter the interior of the Hospital or any Hospital work area, except to visit a patient, receive medical treatment, or conduct hospital-related business. “Hospital related-business” is defined as the pursuit of an employee’s normal duties or duties as specifically directed by management.

An off-duty employee may have access to non-working, exterior areas of the Hospital, including exterior building entry and exit areas and parking lots.

Any employee who violates this Policy will be subject to disciplinary action up to and including termination.

Did it pass NLRB-muster?

Employment policies are more than words on paper; they are a lifestyle

Yahoo CEO Marissa Mayer is in the news. In one breath, she announced that she is expecting twins, but will not be availing herself of her company’s generous maternity leave policy. Yahoo offers all new parents eights weeks of paid time off, and new moms an additional eight weeks. Mayer says that she will take “limited” time off and work throughout her short leave of absence. After the birth of her son in 2012, Mayer returned to work in less than two weeks.

The New York Times quotes Joan Williams, director of the Center for WorkLife Law at the University of California, Hastings, who believes that a company’s actions are more important that its written policies: “The underlying work culture sends the message that if you’re really committed, you’re here all the time.” I could not agree more.

Policies are great tools for employee engagement, recruitment, and retention … if a company follows them. When a CEO spurns her company’s generous parental leave policy, she sends this message to all of her employees: “Our policies do not reflect our culture; my actions reflect our culture. When you have a child, do as I do, not as I say.” So much for generous and consequence-free time-off.

Companies need to be very careful not to send these mixed messages. It might be a leave-of-absence policy (as in Yahoo’s case), or it might be a manager that tells employees they must use vacation time for kids’ doctors appointment or school events, but comes and goes as he pleases without regard. These mixes messages are morale killers.

More importantly, these mixed messages teach employees that your written policies cannot be trusted. This message of distrust is one that you cannot afford to send, especially with policies that have real legal significance, like your anti-harassment policy. If your employee disregard your policies as corporate lip-service, why have them at all?

Recordkeeping policies: how long is too long?

Yesterday we examined a recordkeeping issue specific to potential adverse impact claims under Title VII. Today, I want to cast the net a little wider and look at how long you need to keep a variety of documents related to your employees.

A few important points:

1. This list is in no way meant to be exhaustive. It merely provides a snapshot of how long you need to keep some of your key documents.

2. Mileage will vary from state to state. For example, I suggest keeping certain records for 6 years because Ohio’s statute of limitation for statutory discrimination claims is six years. If your state has  shorter filing period, then some of your recordkeeping obligations may be shorter.

3. If you don’t have a document-retention policy, you should. If you don’t have a guideline for how long to keep certain documents, then your employees have no idea when to destroy. They may keep documents too long, or may destroy them too soon, each of which has potentially disastrous implications in litigation. If you hold too long, then you may have to produce documents that you should no longer have, and if you destroy too soon you may open yourself up to liability for spoliation (destruction) of evidence or other sanctions.

4. Check with employment counsel on numbers 1, 2, and 3. It’s bad idea to try to manage these issues without some legal input.

Without further delay, here’s the list:

Resumés, applications, and related employment materials, including interview records and notes	6 years from date of hiring decision for non-hires and from date of termination for employees
Background checks, drug test results, driving records, company employment verifications, letters of reference and related documents	6 years from date of hiring decision for non-hires and from date of termination for employees
I-9 Forms	The later of 3 years from date of hire or 1 year after termination of employment
Written contracts	8 years after expiration
Handbooks, and other policies or procedures	6 years after expiration
Collective bargaining agreements	6 years after expiration
Compensation and time records	3 years after termination
FMLA and USERRA and related leave records	3 years after termination
Performance appraisal and disciplinary action records	6 years after termination
Benefit records	6 years after filing date
OSHA and other employee safety records	5 years after termination
Workers’ compensation records	10 years after the later of the injury or illness or the close of the claim
EEO-1s	2 years after filing date
Affirmative Action Plans	2 years after close of AAP year
OSHA 300/300A	5 years after posting
ERISA 5500	6 years after filing

NLRB signs off on employer social media policy as legal

It’s not news that employer social media policies are on the NLRB’s radar. What is newsworthy, though, is when the NLRB considers a social media policy and concludes that it does not unlawfully infringe on employees’ rights to engage in protected concerted activity under the National Labor Relations Act.

Consider, then, Landry’s Inc., decided last week by the NLRB, as newsworthy.

In that case, the NLRB considered the following social media policy:

While your free time is generally not subject to any restriction by the Company, the Company urges all employees not to post information regarding the Company, their jobs, or other employees which could lead to morale issues in the workplace or detrimentally affect the Company’s business. This can be accomplished by always thinking before you post, being civil to others and their opinions, and not posting personal information about others unless you have received their permission. You are personally responsible for the content you publish on blogs, wikis, or any other form of social media. Be mindful that what you publish will be public for a long time. Be also mindful that if the Company receives a complaint from an employee about information you have posted about that employee, the Company may need to investigate that complaint to insure that there has been no violation of the harassment policy or other Company policy. In the event there is such a complaint, you will be expected to cooperate in any investigation of that complaint, including providing access to the posts at issue.

The Board concluded that the policy was lawful:

Employees reading the Respondent’s social media policy could reasonably conclude … that they are being urged to be civil with others in posting job-related material and discussing on social media sites their grievances and disagreements with the Respondent or each other regarding job-related matters.… There is no restriction in the social media policy against posting “personnel” information or “payroll information,” or “wage-related information”; and obviously, posting information that in common parlance is generally understood to be personal such as, for example, matters regarding social relationships and similar private matters, could result not only in morale problems but could also constitute “harassment” to which the Respondent’s social media policy refers. It is readily apparent that such postings would likely create enmity among employees in the workplace which could, in turn, adversely affect the Respondent’s business.

Why is this newsworthy? Because, for years, the NLRB has urged for an expansive reading of employer policies, suggesting that a hypothetical parade-of-horribles that could lead to union-related, or other protected concerted, activity renders any facially neutral workplace policy unlawful. In Landry’s, the Board is adopting (at least in this case) a more reasonable, real-world reading of a social media policy to conclude that because no employee could reasonably read the policy, in context, to unreasonably infringe on employees’ rights.

This case provides a good illustration of the fine distinctions the NLRB is drawing between lawful and unlawful social media policies, and provides a good reminder of the need for all employers to routinely review your own social media and other workplace policies for compliance.

When English-only policies and federal labor law collide

It’s been nearly 8(!) years since I first wrote about the legality of English-only workplace rules. If you scan the archives, all of my coverage of this issue has focused on whether such policies discriminate on the basis of national origin in violation of Title VII.

Now the NLRB is attempting to interject itself into this debate.

Last month, in Valley Health System [pdf], an NLRB Administrative Law Judge concluded that a healthcare provider’s English-only rule violated employees’ rights to engage in protected concerted activity under the National Labor Relations Act.

The policy in Valley Health System required that all employees speak and communicate only in English “when conducting business with each other,” “when patients or customers are present or in close proximity,” and “while on duty between staff, patients, visitors [and/or] customers … unless interpretation or translation is requested or required.”

The ALJ concluded:

Employees would reasonably construe [the] English-only rule to restrict them from engaging in concerted activity…. [The] English-only rule is vague as to time and location (i.e., must use English in patient and non-patient areas, in patient access areas, and between employees, staff, customers, patients and visitors), it infringes on an employee’s ability to freely discuss and communicate about work conditions, wages and other terms and conditions of employment.

What does this decision mean for your business?

1. It is only one decision of one ALJ. It is not binding on the Board, and it is not the law of the land. However, given how broadly the NLRB currently is interpreting employees’ section 7 rights under facially neutral workplace policies, businesses should nevertheless pay close attention.

2. It may not be sufficient that an English-only policy pass muster under Title VII as supported by a “business necessity.” Regardless of the business need for employees to communicate in English, a policy still may fall as unlawful if it prohibits or restricts employees from communicating about workplace terms and conditions.

NLRB judge’s analysis of T-Mobile’s handbook is of note for the provisions she concluded to be lawful

Yesterday, I examined, in detail, the NLRB’s General Counsel’s memo on employer policies. Today, I’m going to examine a recent decision by an NLRB judge putting those principles to use.

The opinion [pdf] consolidated seven different unfair labor practice complaints against T-Mobile, challenging 17 different provisions in T-Mobile’s employee handbook, Restrictive Covenant and Confidentiality Agreement, and Code of Business Conduct.

More interesting than the work rules that the ALJ concluded violated employees’ section 7 rights are the work rules that the ALJ concluded did not.

Recording in the Workplace

Recall, yesterday, the NLRB-approved clause in the Wendy’s employee handbook, which provided employees a roadmap to their local NLRB regional office. In the T-Mobile case, the ALJ confirmed as legal the same type of policy—a workplace recording policy—without the NLRB boosterism.

Here’s the policy the ALJ approved in T-Mobile:

To prevent harassment, maintain individual privacy, encourage open communication, and protect confidential information employees are prohibited from recording people or confidential information using cameras, camera phones/devices, or recording devices (audio or video) in the workplace. Apart from customer calls that are recorded for quality purposes, employees may not tape or otherwise make sound recording of work-related or workplace discussions. Exceptions may be granted when participating in an authorized TMUS activity or with permission from an employee’s Manager, HR Business Partner, or the Legal Department. If an exception is granted, employees may not take a picture, audiotape, or videotape others in the workplace without the prior notification of all participants.

Apart from customer calls that are recorded for quality purposes, do not tape or otherwise make sound recordings of work-related or workplace discussions without the permission of all participants and Human Resources or the approval of the Legal Department. Failure to request and receive such permission violates Company policy and may violate the law.

Because of the risk presented by employee’s surreptitiously recording the workplace, the ALJ concluded that this policy did not impinge in employees’ section 7 rights:

The policy explicitly sets forth valid, nondiscriminatory, rationales for its existence. Concerns for safety, maintenance of a harassment free work environment, protection of trade secrets, and a workplace free from unnecessary distractions are all valid reasons for promulgating the rule. The policy expresses a rationale narrowly tailored to address these concerns; and there is no evidence of it being applied in a discriminatory manner.  It is not unreasonable for the Employer to fear that a workplace with surreptitiously recorded conversations would foster hostility, suspicions, low morale, and impede free and open discussion among members of its work force.  It would certainly hinder the open lines of communication between supervisors and employees because of fears that discussions could be secretly recorded for use against them at a later date.

Workplace Conduct

The ALJ also concluded that the following “Workplace Conduct” Policy was lawful:

Employees are expected to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers, and management.

Why?

Within the context of the policy, all employees would understand a prohibition against fighting to mean a physical altercation and by any standard, including the Act, fighting would be inappropriate in the workplace. I do not believe that the rule can reasonably be read as pertaining to Section 7 activity. In the words of the Board, “To ascribe such a meaning to these words is, quite simply, farfetched. Employees reasonably would believe that this rule was intended to reach serious misconduct, not conduct protected by the Act.”

Conclusion

Reading this decision in conjunction with the NLRB General Counsel’s Report confirms what I have believed for a long time—the NLRB is splitting hairs in drawing fine distinctions between employment policies that violate employees’ section 7 rights and those that don’t. Regardless of whether the Board and its judges are splitting hairs, you need to have these issues on your corporate radar. The T-Mobile issues got to the Board through efforts by the Communications Workers of America, which has been pushing for years for T-Mobile’s employees to join its union.

Don’t assume that a) your policies are good enough, or b) a labor union will not target your company. Unions are using the current pro-employee regulatory environment to ramp up their organizing efforts. If your company becomes a target, a union will use overly broad work rules as an inroad to the NLRB and to your employees. Act now to make sure your handbook and other policies pass NLRB muster, before someone (or something) else makes that decision for you.

Analysis of the NLRB’s guidance on employer rules (or, meet the new boss … same as the old boss)

It’s been nearly two years since then-acting NLRB General Counsel Lafe Solomon issued his office’s guidance on social media policies under Section 7 of the NLRA. At the time, I called the Board’s position “a bungled mess.”

Last Wednesday, current NLRB General Counsel Richard Griffin issued his 30-page missive on employer policies under Section 7 of the NLRA [pdf]. I’m sad (but not surprised) to report that not much has changed in the NLRB’s misguided approach to facially neutral employment policies. The NLRB continues to take facially neutral policies, spin a parade of non-existent anti-union horribles, and conclude that because some hypothetical employee could under the exact proper set of circumstances, that the policy could restrict an employee’s right to communicate with a labor union or complain about work, said policy violates all employees’ section 7 rights.

Notably, the Board seems to be splitting hairs between what is a lawful policy and what is an unlawful policy. Consider the following (non)distinctions the NLRB is drawing:

 

Confidentiality

Unlawful: “Never publish or disclose [the Employer’s] or another’s confidential or other proprietary information. Never publish or report on conversations that are meant to be private or internal to [the Employer].”

– vs –

Lawful: “Misuse or unauthorized disclosure of confidential information not otherwise available to persons or firms outside [Employer] is cause for disciplinary action, including termination.”

 

Conduct Towards the Company and Supervisors

Unlawful: “[B]e respectful to the company, other employees, customers, partners, and competitors.”

– vs –

Lawful: “No rudeness or unprofessional behavior toward a customer, or anyone in contact with the company,” and “Being insubordinate, threatening, intimidating, disrespectful or assaulting a manager/supervisor, coworker, customer or vendor will result in discipline.”

 

Conduct Towards Fellow Employees

Unlawful: “Do not send unwanted, offensive, or inappropriate emails.”

– vs –

Lawful: “No harassment,” and no “use of racial slurs, derogatory comments, or insults.”

 

Interaction with Third Parties

Unlawful: “Associates are not authorized to answer questions from the news media…. When approached for information, you should refer the person to [the Employer’s] Media Relations Department.”

– vs –

Lawful: “Events may occur at our stores that will draw immediate attention from the news media. It is imperative that one person speaks for the Company to deliver an appropriate message and to avoid giving misinformation in any media inquiry…. Answer all media/reporter questions like this: ‘I am not authorized to comment for [the Employer] (or I don’t have the information you want). Let me have our public affairs office contact you.’”

 

Use of Company Logos, Copyrights, and Trademarks

Unlawful: “Company logos and trademarks may not be used without written consent.”

– vs –

Lawful: “[I]t is critical that you show proper respect for the laws governing copyright, fair use of copyrighted material owned by others, trademarks and other intellectual property, including [the Employer’s] own copyrights, trademarks and brands.”

 

Restricting Photography and Recording

Unlawful: Prohibition from wearing cell phones, making personal calls or viewing or sending texts “while on duty.”

– vs –

Lawful: “No cameras are to be allowed in the store or parking lot without prior approval from the corporate office.”

 

Restricting Employees from Leaving Work

Unlawful: “Failure to report to your scheduled shift for more than three consecutive days without prior authorization or ‘walking off the job’ during a scheduled shift” is prohibited.

– vs –

Lawful: “Entering or leaving Company property without permission may result in discharge.”

 

Conflict-of-Interest

Unlawful: “Employees may not engage in any action that is not in the best interest of [the Employer].”

– vs –

Lawful: Employees must refrain “from any activity or having any financial interest that is inconsistent with the Company’s best interest” and also must refrain from ‘activities, investments or associations that compete with the Company, interferes with one’s judgment concerning the Company’s best interests, or exploits one’s position with the Company for personal gains.”

How does the NLRB spell splitting hairs? Wow, the Board’s GC is drawing some very narrow distinctions, based on little more than the use of few different words.

 

One More Thing

If you’ve seen any of the recent Marvel movies, you know to stick around though the credits, because there’s always an extra scene hinting at what will happen next in movies to come. Is General Counsel Griffin is taking his cue from Marvel? If you stick around to the end of his report, you’ll find revised policies that the NLRB approved as part of a settlement with Wendy’s. The devil, however, is in the details. Consider this policy on Phones, Cameras, and Recording Devices, given the NLRB’s seal of approval:

Due to the potential for issues such as invasion of privacy (employee and customer), sexual or other harassment (as defined by our harassment /discrimination policy), protection of proprietary recipes and preparation techniques, Crew Members may not take, distribute, or post pictures, videos, or audio recordings while on working time. Crew Members also may not take pictures or make recordings of work areas. An exception to the rule concerning pictures and recordings of work areas would be to engage in activity protected by the National Labor Relations Act including, for example, taking pictures of health, safety and/or working condition concerns or of strike, protest and work-related issues and/or other protected concerted activities.

How do you feel about policies that provide employees with a roadmap to your local NLRB regional office? Guess what? I’m not a huge fan either.

Regardless, this report confirms that employee handbooks and other workplace policies will continue to remain in the middle of the NLRB’s radar for the foreseeable future. If you haven’t recently updated your employee handbook and other policies, now would be a good time to have your friendly neighborhood employment lawyer do so.

Come back tomorrow for a real-world example of how NLRB judges are applying these rules.

BREAKING: NLRB Office of General Counsel issues report on employer rules

Today, the NLRB Office of General Counsel issued its report on employer handbook rules under section 7 of the NLRA. It’s a meaty 30-page report that will take some time to digest. I’ll have my thoughts and analysis early next week.

In the meantime, you can download the report here:  http://apps.nlrb.gov/link/document.aspx/09031d4581b37135.

Love has no boundaries—except at work

Some of you may recall that I serve on the editorial advisory board of Workforce Magazine. I also pen a monthly column for the mag. Since we are approaching Valentine’s Day, I’m sharing this month’s timely column. Enjoy.

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Love Has No Boundaries — Except at Work