Tag: employee handbooks

2023 NLRB Update Cover Slide

2023 NLRB Update (Webinar Recap)

On October 18, 2023, I presented a complimentary webinar entitled “2023 NLRB Update”. For those who couldn’t attend the live webinar, I’m happy to make it available for you to watch at your convenience.

In the webinar, I discuss:

  • Work Rules & Policies
  • Election Rules & Results
  • Bargaining Rules & Standards
  • What’s Next?

and much more!

The National Labor Relations Board enforces the National Labor Relations Act, which applies to most public-sector employers in the United States. This law permits employees to unionize, but also has implications in non-union workforces as well. The NLRB’s interpretation and application of the NLRA fluctuates, typically based on which political party is in the majority on the 5-member Board in Washington. NLRB Board members are appointed by the President to five-year terms, so policy shifts, which primarily occur through adjudicating cases, do not occur immediately upon a change in the White House. But recently, the Board has reversed course on many issues, creating a more burdensome regulatory environment for employers.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “2023 NLRB Update”

A series of significant policy changes from the NLRB should have all private employers on alert. For example, many previously commonplace work rules and employee policies may now be found to violate the NLRA. Moreover, changes to the union election rules and related procedures will likely make it harder for employers to oppose union organizing campaigns. Developments regarding collective bargaining rights and obligations are also shifting, as is pertinent to those companies whose employees are already represented by a labor organization.

Much of the most dramatic new caselaw arose in August 2023. The new election rules are scheduled to take effect on December 26, 2023. This webinar discusses what all U.S. businesses should know about the latest from the NLRB. More than ever, employers must be proactive to avoid unfair labor practice charges and representation proceedings.

This webinar also provides insights into recent union election data, trends, and results that aren’t available elsewhere.

Don’t Miss Our Future Webinars!

Click here to sign up for the Horton Management Law email newsletter to be among the first to know when registration is open for upcoming programs! And follow us on LinkedIn for even more frequent updates on important employment law issues.

Workplace Dress Codes

NLRB Increases Scrutiny of Workplace Dress Codes

On August 29, 2022, the National Labor Relations Board (NLRB) found that Tesla’s dress code violated the National Labor Relations Act (NLRA). This decision reversed existing precedent, giving employers less leeway in controlling what their employees wear to work. Now, any workplace dress codes that may be read to restrict wearing union insignia or apparel will be presumed to violate federal labor law. Employers must show special circumstances to justify any such policy.

Section 7 Rights

The NLRB’s analysis of workplace dress codes arises under Section 7 of the NLRA. Section 7 grants employees the rights to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” It also protects employees’ right to refrain from such activities.

Section 7 rights include the prerogative to demonstrate support for a labor union, such as by wearing union insignia on buttons or apparel. However, the right is not absolute and has always been subject to various time, place, and manner restrictions. The scope of those restrictions has fluctuated over the years based on varying views of NLRB members.

Tesla’s Policy

Tesla required production associates manufacturing its electric vehicles to wear assigned company uniforms. The company provided each associate with two pairs of black pants, two black short-sleeve shirts, two black long-sleeve shirts, and a black sweater. The shirts and sweaters bear Tesla’s logo. Supervisors and line inspectors wear red and white shirts, respectively, to distinguish them by job function.

Production associates were allowed to substitute other all-black clothing for the company-issued uniform. However, Tesla’s team-wear policy specified that “[a]alternative clothing must be mutilation free, work appropriate and pose no safety risks (no zippers, yoga pants, hoodies with hood up, etc.).”

Wal-Mart Precedent

In a 2019 decision involving Wal-Mart, the NLRB held that a facially neutral employee appearance policy would be deemed lawful. The burden would then fall to the party challenging dress codes to demonstrate how they unduly restrict employees’ rights to show union support.

The Tesla ruling expressly overrules Wal-Mart. Two NLRB Board members who were in the majority in deciding the Wal-Mart case three years ago dissented in Tesla. The Board majority has shifted to 3-2 control by pro-labor members.

New Standard for Workplace Dress Codes

Under Tesla, the NLRB will find any limitation on employee dress and appearance policies that might limit the display of union insignia to violate the NLRA, unless the employer demonstrates sufficient justification for its policy. Thus, the decision flips the presumption.

There are various situations where the NLRB has permitted limited restrictions on what employees wear. For example, employers may impose restrictions when the display of union insignia “may jeopardize employee safety, damage machinery or products, exacerbate employee dissension, [] unreasonably interfere with a public image the employer has established, or when necessary to maintain decorum and discipline among employees.” But when an employer seeks to uphold their workplace dress code based on any of these rationales, the NLRB will “engage[] in a rigorous, fact-specific inquiry to determine whether the employer actually established the presence of special circumstances in the context of its workplace.”

Employers Beware

Under the new Tesla standard, employers are at risk of having any workplace dress code struck as unlawful. The dissenters hypothesize many scenarios where requiring employees to dress relatively uniformly would not survive the NLRB’s scrutiny. At best, employers would need to rely on exceptions that may or may not be deemed to apply to their situation. Moreover, the NLRB applied its changed standard retroactively to Tesla, demonstrating that any company is at risk of being faulted for relying on an existing exception that the current NLRB majority disagrees with.

In the bigger picture, employers should realize this is just the first significant reversal of NLRB policy by the newly pro-labor Board majority. It is prudent to expect similar rulings beyond the issue of what employees can wear to work. The Wal-Mart ruling followed a 2017 standard for reviewing workplace policies established in a case involving Boeing. The NLRB will likely further erode Boeing‘s relative protection of employers’ rights to control what happens in their workplaces.

 

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NLRB in 2022 Webinar Cover Slide

NLRB in 2022 (Webinar Recap)

On February 3, 2022, I presented a complimentary webinar entitled “NLRB in 2022”. For those who couldn’t attend the live webinar, I’m happy to make it available for you to watch at your convenience.

In the webinar, I discuss:

  • Who’s in Charge
  • Handbooks & Policies
  • Use of Company Property
  • Unionization

and much more!

In late 2021, the majority on the 5-member National Labor Relations Board shifted from Republican to Democrat control. This shift is expected to result in numerous changes to the Board’s interpretation and application of the National Labor Relations Act. For employers, this means more restrictions on their workplace policies and practices. It could also lead to stronger efforts by labor unions to organize your employees.

Find out how the changes at the NLRB may affect your company and why you might want to start making changes now.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “NLRB in 2022”

The NLRB enforces the National Labor Relations Act, which gives both unionized and non-union employees certain rights in the workplace. The extent of these protections tends to shift depending on the makeup of the Board in Washington. With a recent shift to a Democratic majority, we expect the Board to apply the NLRA more broadly, meaning greater restrictions on employer policies and practices.

If your organization is in the private sector (i.e., not a governmental entity), then you are likely subject to the NLRB’s jurisdiction. There are more than 50 categories of cases where the current NLRB leadership may try to reverse course on existing precedents that it deems to be too employer-friendly. Watch this webinar to better understand how anticipated policy shifts could affect your company. And learn why you might want to start making some operational changes even before the NLRB announces new legal interpretations.

Don’t Miss Our Future Webinars!

Click here to sign up for the Horton Law email newsletter to be among the first to know when registration is open for upcoming programs! And follow us on LinkedIn for even more frequent updates on important employment law issues.