Tag: policies

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.

April 17, 2018

State Budget Expands New York Sexual Harassment Laws

On April 12, 2018, New York Governor Andrew Cuomo signed State Budget legislation that includes several provisions aimed at workplace sexual harassment. Some of the items included will require additional clarification through agency guidance and regulations. But here’s an initial overview of how New York sexual harassment laws will change.

Some new aspects of New York sexual harassment law took effect immediately. Others will become effective later. Here they are in the order that they take effect.

Protection of Non-Employees

Before April 12, 2018, the New York Human Rights Law only protected employees from sexual harassment. Effective immediately, it is also unlawful for employers to permit sexual harassment of non-employees in their workplaces.

In addition to employees, the law now protects:

Contractors
Subcontractors
Vendors
Consultants
Other persons providing services under a contract in the workplace
Employees of the above

An employer may be liable for sexual harassment against these individuals if it knew or should have known that the individual was subjected to sexual harassment in its workplace and failed to take “immediate and appropriate corrective action.”

The law does add that: “In reviewing such cases involving non-employees, the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of the harasser shall be considered.”

Public Officers

Effectively immediately, employees and officers of public entities (including the State, its agencies, local governments, and school districts) who are found personally liable for intentional wrongdoing related to sexual harassment must now reimburse their employer if it pays the judgment to a victim.

If the employee does not repay their public employer within 90 days, the employer may withhold compensation from the employee’s pay. If the person is no longer employed by the public entity, the employer may pursue collection through the courts.

Mandatory Arbitration Clauses

Beginning July 11, 2018, New York law will prohibit “any clause or provision in any contract which requires as a condition of the enforcement of the contract or obtaining remedies under the contract that the parties submit to mandatory arbitration to resolve any allegation or claim of an unlawful discriminatory practice of sexual harassment.”

This law defines a “mandatory arbitration clause” as “a term or provision contained in a written contract which requires the parties to such contract to submit any matter thereafter arising under such contract to arbitration prior to the commencement of any legal action to enforce the provisions of such contract and which also further provides language to the effect that the facts found or determination made by the arbitrator or panel of arbitrators in its application to a party alleging an unlawful discriminatory practice based on sexual harassment shall be final and not subject to independent court review.”

The law contains a telling exception. This prohibition applies “except where inconsistent with federal law”. That language is probably unnecessary, as the State law could not trump federal law anyway. But, it shows the Legislature’s recognition that federal law, including the Federal Arbitration Act, broadly favors arbitration. Thus, it remains to be seen whether this state restriction will be enforceable.

The law also allows that mandatory arbitration clauses contained in collective bargaining agreements are not prohibited.

Nondisclosure Agreements

Also as of July 11, 2018, employers may no longer include a provision in any settlement document resolving any claim involving sexual harassment that “would prevent the disclosure of the underlying facts and circumstances to the claim.”

The law provides an exception where “the condition of confidentiality is the plaintiff’s preference.” In that case, the plaintiff must have 21 days to consider the nondisclosure terms. Then, after 21 days, the parties can agree to the provision in a written agreement signed by all parties. But the plaintiff still must have at least 7 days to revoke the agreement after signing it.

New York Sexual Harassment Prevention

For the first time, New York will require all employers to maintain sexual harassment prevention policies and provide training for employees. These requirements take effect October 9, 2018.

Model Policy

A new provision of the New York State Labor Law requires the Department of Labor (DOL) to consult with the Division of Human Rights and publish a “model sexual harassment prevention guidance document and sexual harassment prevention policy.”

The model New York sexual harassment prevention policy must:

Prohibit sexual harassment and provide examples of prohibited conduct;
Include information about federal, state, and local sexual harassment laws;
Include a standard complaint form;
Identify a procedure for “timely and confidential investigation of complaints and ensure due process for all parties”;
Inform employees of their rights of redress and all available administrative and judicial forums for adjudicating sexual harassment complaints;
State that sexual harassment is a form of employee misconduct with sanctions for both individuals engaging in it and supervisors and managers who allow it to continue; and
Prohibit retaliation against individuals who complain of sexual harassment or testify or assist in any proceeding.

Once the model policy is available, all New York employers must adopt it or one that “equals or exceeds the minimum standards provided by such model”. Employers must provide their policy to all employees in writing.

Model Training Program

The DOL must also consult with the Division of Human Rights and produce a model sexual harassment training program.

The model New York sexual harassment prevention training program must be “interactive” and include:

An explanation of sexual harassment;
Examples of conduct that would constitute unlawful sexual harassment;
Information about federal and state sexual harassment laws and remedies;
Information about employees’ rights of redress and available forums; and
Additional responsibilities regarding supervisors.

Every New York employer will have to provide sexual harassment prevention training to all employees annually. Employers may use either the model training program or one that “equals or exceeds the minimum standards provided by such model training.”

State Contractors

Starting January 1, 2019, any entity seeking a contract with the State of New York through competitive bidding must certify that they have instituted a written policy on sexual harassment prevention. They must further certify that they provide annual sexual harassment training to all employees.

Stay Tuned for More on These New York Sexual Harassment Laws

Since most of these New York sexual harassment law changes don’t take effect immediately, employers have some time to prepare. For many, the biggest project will be complying with the new policy and training requirements. Even employers who already provide anti-harassment training to their employees will have to review the model policies and training programs to make sure they meet the minimum standards.

One thing you can do now is sign up for my email newsletter to make sure you get my updates on these important topics. This will include an announcement about a free webinar once the State issues the model New York sexual harassment materials.

December 20, 2017

2017 NLRB Buzzer Beaters

Republicans (temporarily) lost majority control of the National Labor Relations Board when Chairman Philip Miscimarra’s term expired on December 16, 2017. But not before they pulled off some 2017 NLRB fireworks!

Facing a 2-2 party split to begin 2018, Republican Members Marvin Kaplan and William Emanuel joined the outgoing Chairman in issuing pivotal rulings in the last days of his term. Here’s a quick summary of some of the most important 2017 NLRB policy shifts.

New Election Rules?

Not yet. But the road is paved.

On December 13, 2017, the NLRB issued a request for information from the public regarding the agency’s union election procedures. Specifically, the Board asked for information regarding the 2014 amendments to the rules. Those were promulgated by a Democrat-majority Board under President Obama, leading to what many have dubbed “quickie elections.”

The request for information itself does not change anything. However, it does strongly suggest a potential change in course. Once President Trump nominates and the Senate confirms a new Republican member to the NLRB, Members Kaplan, Emanuel, and their new colleague could take further action to revise the election rules. The result would likely be more time between filing of petitions and elections taking place.

Read here for more details on the request for information.

More Reasonable Restrictions on Employee Conduct

Under the previous administration, the NLRB said that employers could not have policies requiring employees to be “respectful”.

That was only illustrative of the extent to which the Obama Board objected to standard employment policies of the types long found in many employers’ employee handbooks.

The Obama NLRB also particularly enjoyed regulating comparatively new “Social Media” policies. Various Democrat-controlled panels routinely struck down policies, or at least portions of them, that seemed to most employers to be perfectly reasonable means of conducting business and avoiding undue attacks on companies from their own employees.

On December 14, 2017, the Miscimarra-chaired Board effectively reversed numerous Obama-era decisions by changing the legal test upon which they were decided.

A 2004 NLRB decision reasoned that even if a rule doesn’t “explicitly restrict” an employee right under the National Labor Relations Act, the rule may still be unlawful if employees would “reasonably construe the language” to restrict activity that the Act protects.

In a case involving Boeing, the 2017 NLRB (with both Democrats dissenting) has now rejected that standard and replaced it with a “balancing” test. Going forward the NLRB will now weigh “the nature and extent of the potential impact on NLRA rights” against “legitimate justifications associated with the rule.” (You can read the full decision here.)

The predictable impact of the new test will be greater protection of employers’ rights to maintain appropriate control over their business.

Relaxing the Joint Employer Doctrine

In 2015, the NLRB, over the objection of Miscimarra and fellow Republican Member Harry I. Johnson III, created a broad standard for determining when separate business entities simultaneously “employ” the same employees. In other words, when two different companies are “joint employers”. The critical question affects various issues under the National Labor Relations Act. These include union representation and liability for unfair labor practices.

In another December 14, 2017, 3-2 Board decision, the NLRB announced it was returning to an earlier test that “reflects a common-sense, practical understanding of the nature of contractual relationships in our modern economy”. The restored test will depend on which business(es) have “direct and immediate” control over terms and conditions of employment. It dismisses analysis of “indirect” factors that the Democrat majority introduced in 2015. (You can read the full decision here.)

Among other situations, this change in the joint employer doctrine will significantly affect franchised businesses. There are, for example, many NLRB cases contesting whether McDonald’s Corporation is a joint employer of its independent franchisees’ employees.

Eliminating Micro-Units

In 2011, the NLRB issued a ruling in Specialty-Healthcare that has permitted unions to organize smaller subsets of an employers’ workforce. Essentially, the Obama Board would accept most any bargaining unit containing employees who share some “community of interest”. The employer had the burden of proving that additional employees share an “overwhelming community of interest” in order to enlarge the scope of a proposed bargaining unit.

The new line of cases beginning in 2011 benefited unions seeking to organize, because they did not need to win the support of as many employees within a workplace. Indeed, they had greater latitude to pursue bargaining units that happened to coincide with employees who favored union representation. Pockets of co-workers who opposed the union could be ignored.

On December 15, 2017, however, the Miscimarra-led Republican majority reinstated the NLRB’s traditional community of interest standard in determining what bargaining units are appropriate. Under this restored test, the Board will evaluate “whether the employees in a petitioned-for group share a community of interest sufficiently distinct from the interests of employees excluded from the petitioned-for group to warrant a finding that the proposed group constitutes a separate appropriate unit.” (You can read the full decision here.)

2017 NLRB Makes Way for 2018

President Trump will have the opportunity to appoint his third NLRB member by the beginning of his second year in office. That is somewhat remarkable considering that Board members hold 5-year terms.

There’s no obvious reason to doubt that the newest Board member will agree with these 2017 NLRB reversals. He will likely join Members Kaplan and Emmanuel in reversing other Obama-era decisions, giving employers more latitude to manage their workplaces.