Tag: general counsel

June 7, 2018

New Rules for Employee Handbooks

On June 6, 2018, the General Counsel of the National Labor Relations Board issued a guidance memorandum regarding employee handbooks and other work rules. The memo applies a December 2017 NLRB case decision that permitted employers greater flexibility in drafting meaningful workplace policies.

If challenged under the National Labor Relations Act, rules will now fall into one of three categories: lawful rules, unlawful rules, and rules requiring further scrutiny. Many more rules will be deemed lawful than under the previous analysis.

1. Rules that are Generally Lawful to Maintain

The guidance memorandum identifies nine subcategories of rules that will usually not violate the National Labor Relations Act (NLRA). These rules are acceptable “either because the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of rights guaranteed by the Act, or because the potential adverse impact on protected rights is outweighed by the business justifications associated with the rule.”

Civility Rules

Under the Obama Administration, the NLRB routinely found that this type of rule was unlawful. Now they will usually be acceptable because they “are consistent with basic standards of harmony and civility.”

Examples of generally lawful civility rules include:

“Behavior that is rude, condescending or otherwise socially unacceptable is prohibited.”
“Disparaging the company’s employees is prohibited.”
“Employees may not post any statements, photographs, video or audio that reasonably could be viewed as disparaging to employees.”

No-Photography Rules and No-Recording Rules

The NLRB recently allowed a rule prohibiting the use of camera-enabled devices to take images or video at work. The guidance memo suggests that similar rules regarding audio recording should likewise be lawful.

However, the memo cautions that “a ban on mere possession of cell phones at work may be unlawful where the employees’ main method of communication during the work day is by cell phone.”

Rules Against Insubordination, Non-cooperation, or On-the-job Conduct that Adversely Affects Operations

The guidance memorandum acknowledges that nearly all employee handbooks contain these rules. It provides these specific examples:

“Being uncooperative with supervisors or otherwise engaging in conduct that does not support the Employer’s goals and objectives is prohibited.”
“Insubordination to a manager or lack of cooperation with fellow employees or guests is prohibited.”

Rules of this nature will generally be acceptable.

Disruptive Behavior Rules

The guidance memorandum references rules prohibiting:

“Boisterous and other disruptive conduct.”
“Creating a disturbance on Company premises or creating discord with clients or fellow employees.”

In 2016, the NLRB found the first rule above unlawful because employees could read it to prohibit lawful activity such as protests and picketing. However, the current Board will likely allow these rules. The guidance memo offers that “even if employees would read such rules as applying to strikes and walkouts (as opposed to only unprotected conduct), employees would not generally refrain from such activity merely because a rule bans disruptive conduct.”

Rules Protecting Confidential, Proprietary, and Customer Information or Documents

Confidentiality rules in employee handbooks can be problematic if they limit discussion of wage information or working conditions. But the guidance memorandum clarifies that other rules “banning the discussion of confidential, proprietary, or customer information” are now generally acceptable. “Employees do not have a right under the Act to disclose employee information obtained from unauthorized access/use of confidential records, or to remove records from the employer’s premises.”

Rules against Defamation or Misrepresentation

As recently as 2017, the NLRB held that a rule prohibiting employees from “misrepresenting the company’s products or services or its employees” was unlawful. The new guidance memorandum suggests that rule is now acceptable, recognizing that “[t]he vast majority of conduct covered by these rules is unprotected.”

Rules against Using Employer Logos or Intellectual Property

In the past, the NLRB objected to these rules:

“Employees are forbidden from using the Company’s logos for any reason.”
“Do not use any Company logo, trademark, or graphic without prior written approval.”

Now, employers may include similar rules in their employee handbooks. The current NLRB General Counsel accepts that these rules are unlikely to deter employees from “fair use of a logo on a picket sign,” which would likely be allowed under federal copyright and labor laws.

Rules Requiring Authorization to Speak for Company

As long as the rule only addresses who may speak on behalf of the company, it will generally be lawful.

Rules Banning Disloyalty, Nepotism, or Self-Enrichment

The NLRB has historically allowed rules of this nature. Examples include:

“Employees may not engage in conduct that is disloyal, competitive, or damaging to the company such as illegal acts in restraining of trade or employment with another employer.”
“Employees are banned from activities or investments 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 gain.”

2. Rules Warranting Individualized Scrutiny

The NLRB recognizes a gray area for rules that are not obviously lawful or unlawful on their face. Whether an employer may maintain such rules in their employee handbooks or policies manuals will depend on context.

The guidance memo advises that:

[S]uch rules should be viewed as they would by employees who interpret work rules as they apply to the everydayness of their job. Other contextual factors include the placement of the rules among other rules, the kinds of examples provided, and the type and character of the workplace.

These rules will also draw greater scrutiny if employees have actually refrained from lawful activity because of them.

Here are some rules that may fall into this category:

Broad conflict-of-interest rules
Confidentiality rules encompassing “employer business” or “employee information”
Rules regarding disparagement or criticism of the employer
Restrictions on use of the employer’s name
Rules restricting speaking to the media or third parties
Bans on off-duty conduct that might harm the employer
Rules against making false or inaccurate statements

3. Rules that are Unlawful to Maintain

Finally, some rules will still readily violate the NLRA. The following will most likely get employers in trouble.

Confidentiality Rules Specifically Regarding Wages, Benefits, or Working Conditions

The ability to interact with other employees over core terms of employment is a fundamental right under federal labor law. The guidance memorandum offers that “[t]here are no legitimate interests in banning employees from discussing wages or working conditions that are sufficient to overcome Section 7 [of the NLRA] rights.”

Rules Against Joining Outside Organizations or Voting on Matters Concerning Employer

Similarly, the NLRA plainly gives employees the right to join unions. So, employers cannot directly purport to curtail that right through a workplace rule.

Revising Employee Handbooks

This NLRB guidance and the recent case decision give employers greater leeway in drafting their workplace policies. Accordingly, businesses may take this opportunity to review their employee handbooks and consider revisions. But, employers who previously revised policies to comply with earlier, more-stringent NLRB rulings could choose to retain the less-restrictive policies.

November 21, 2017

What Are Employers Thankful for in 2017?

In advance of Thanksgiving 2017, I thought I would recap some of the most significant labor and employment law developments so far this year. Let’s take a look at what’s making employers thankful this holiday season!

I recognize that some do not personally agree with all of the policy and legal issues discussed here, but they are generally “positives” for employers with respect to the employment relationship.

No Increase (Yet) to Federal Overtime Threshold

This time last year, employers across the country were preparing for a huge increase in the salary level for many common FLSA overtime exemptions. The Department of Labor’s new rules then scheduled to take effect December 1, 2016, would have more than doubled the salary requirement from $455 weekly to $913 per week. In addition, the rules provided for automatic increases to the threshold every 3 years.

Then, on November 22, 2016, a federal judge in Texas enjoined the rule before it took effect. The Department of Labor preserved its rights to keep fighting, but under President Trump it has shifted its priority toward reconsidering the rules. The injunction is still on appeal, but it is clear the Trump DOL will not try to implement the 2016 rules.

It seems likely that the DOL will instead come up with a new set of rules. They will probably increase the salary requirement to a level below $913 per week. But we are probably at least a year away from any changes taking effect.

Republican Control of the National Labor Relations Board

Attorney Peter B. Robb was sworn in as General Counsel of the National Labor Relations Board on November 17, 2017. He replaces Obama-appointee Richard F. Griffin, Jr., who served from November 4, 2013 to October 31, 2017.

Robb has represented employers in labor and employment law for approximately the past 30 years. For more on his background, read this earlier post.

As chief prosecutor for the NLRB, Robb will have significant control over the agency’s agenda during his 4-year term.

Two President Trump nominees had already joined the 5-member Board, giving Republicans a 3-2 majority over the agency’s adjudicatory body. Read more about new Labor Board members Marvin Kaplan and William Emanuel.

Experts anticipate that the Republican majority will reverse many pro-labor decisions from the Obama-era NLRB. Some prime targets for review are decisions related to:

Joint employer doctrine
Mandatory arbitration/class-action waivers
Micro bargaining units
Union election procedures
Social media policies
Graduate student collective bargaining
Employee use of employer-provide email accounts
Confidentiality of internal investigations

Although employers must continue to abide by the National Labor Relations Act, including respecting employees’ Section 7 rights, they should gradually regain more leeway to run their businesses with the new Board.

Congressional Disinterest in Employment Laws

Sure, healthcare and taxes are major topics of interest for all businesses. And they’re very much on the table. But there has been little meaningful discussion of further regulating the employment relationship at the federal level.

If anything, this Congress may eventually try to loosen burdens on employers. This could include legislation to expedite issues that the NLRB and Department of Labor could more slowly address through adjudication and rulemaking. Efforts are already underway to relax existing joint employer tests, for example.

One issue raised by Trump’s campaign, paid family leave, remains just off the back burner. However, the most viable legislation floated so far seems to involve optional leave programs. It seems clear that the Republican Congress isn’t eager to impose more burdens on employers just because the President threw an idea out there.

What Else Would Make Employers Thankful?

Here are just a few thoughts about some other issues that would make employers thankful going forward. Some would be easier to achieve than others

1. More effective means of preventing workplace harassment.

Sexual harassment has become a hot media topic recently. This is unfortunate in that the harassment, including assault, occurred in the first place. But at least the recent accounts are shining a spotlight and motivating people to do something about it.

This does, however, have a significant potential impact on employers. Various employment discrimination laws prohibit harassment based on many protected characteristics not limited to sexual harassment. It’s reasonable to assume that more employees will come forward to report harassment in light of the recent societal openness on the subject. This will require employers to expend resources on investigations and enhanced training. Plus, some will inevitably be held liable, meaning settlements, legal fees, and damages awards.

For some well-run businesses, this will mean increased costs, both direct and to productivity. They should recognize the inevitable and try to come up with innovative ways to prevent harassment. Areas of consideration include hiring, performance reviews, management accountability, and even exit interviews. This may well not be an area where the law will help employers. But, if necessary, the existing laws can help provide the motivation to act.

2. Resolution of the Affordable Care Act debate.

Congress remains within a couple Senate votes from repealing the Affordable Care Act (“Obamacare”). Like it or hate it, employers need to know what’s going to happen with this law that still hasn’t fully taken effect. The only thing that seems clear is that many of the existing (in writing) requirements upon employers will never actually materialize. But it’s still something of a guessing game to determine what will apply and when.

Most likely, we’ll have a new set of rules in this area within a couple of years. But who knows what they’ll look like! With the ever increasing cost of health insurance, uncertainty surrounding employers’ responsibilities is a major headache, at best.

3. Clarity in dealing with employee disabilities.

There are so many laws that apply when addressing an employee medical situation. These include the Americans With Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), the Family and Medical Leave Act (FMLA), worker’s compensation laws, state disability discrimination laws, and more.

It’s hard enough to comply with any one of these sets of rules, let alone all of them together. They leave many traps for the unwary and the well-intentioned employer alike. Even though employers usually want to be fair to employees with medical conditions, they must consider other employees and effective operation of the business as well.

For now, employers just have to accept that managing these situations is complicated. Perhaps one day some wise lawmakers can come up with a good a solution that make many employers thankful.

You may also be interested in reading 5 Big Legal Questions for New York Employers.

November 8, 2017

Peter Robb Is New NLRB General Counsel

On November 8, 2017, the U.S. Senate confirmed Peter Robb to a 4-year term as the next General Counsel of the National Labor Relations Board. Robb previously served as an NLRB attorney, but has been in private practice for the past 30+ years.

The Senate voted 49-46 along party lines. Before Robb’s confirmation, Jennifer A. Abruzzo had served as Acting General Counsel since Richard Griffin’s term expired on October 31, 2017.

The new NLRB General Counsel will be responsible for investigating and prosecuting unfair labor practice cases and overseeing the NLRB field offices.

Meet the New NLRB General Counsel

Peter B. Robb most recently practiced labor and employment law with Downs Rachlin Martin PLLC in Vermont since 1995. He previously practiced with Proskauer Rose LLP.

From 1981-1985 he served as chief counsel to NLRB Member Robert P. Hunter (R). Before that, he had been an NLRB field attorney and a supervisory attorney with the Federal Labor Relations Authority.

Robb received his B.A. from Georgetown University and his J.D. from the University of Maryland School of Law.

About Jennifer Abruzzo

Jennifer Abruzzo became the NLRB’s Deputy General Counsel on November 4, 2013. That was the same day that Richard Griffin began his 4-year term as General Counsel. Before that, she held other positions in the General Counsel’s office. In total, Abruzzo has spent more than 20 years with the National Labor Relations Board. Her other positions have included Field Attorney, Supervisory Field Attorney, and Deputy Regional Attorney in the Miami, Florida office. She also served as Deputy Assistant General Counsel in the Division of Operations-Management in Washington, D.C.

Abruzzo is not known to have taken any significant action during her one week as Acting General Counsel.

Rosemary Collyer is the only woman to have served as NLRB General Counsel in a non-acting capacity. She held the position from 1984-1989. She is now a Senior United States District Judge on the U.S. District Court for the District of Columbia and the Presiding Judge of the U.S. Foreign Intelligence Surveillance Court.

Status of NLRB Transition

Robb’s confirmation as the new NLRB General Counsel completes the initial transition from the Obama-era Labor Board. The General Counsel operates independently from the 5-member National Labor Relations Board, but has considerable influence over the cases brought to the Board for adjudication.

With two Trump appointees (William Emanuel and Marvin Kaplan) already serving on the Board, the 3-2 Republican majority will likely get to work rolling back many positions taken by their recent pro-labor predecessors.

However, NLRB Chairman Philip Miscimarra has announced he will not accept a new term when his expires in December. This will create a third Labor Board vacancy in President Trump’s first year in office. Morgan, Lewis & Bockius LLP partner John Ring and California attorney/politician Mike Stoker have been mentioned as potential nominees.