Guidance or Warning? - NLRB Speaks Out on Employer Rules
March 26, 2015
The General Counsel of the National Labor Relations Board (“NLRB” or “the Board”) recently published a 30-page memorandum to aid employers in creating workplace rules compliant with the restrictions in the National Labor Relations Act (“NLRA” or “the Act”). The Board’s decisions over the past few years present a bias in favor of employees resulting in uncertainty and confusion for employers. This effort by the General Counsel seems to demonstrate an effort by the NRLB to provide greater clarity in application of the Act.
As with other laws governing the employment relationship, it is critical for employers to become familiar with the requirements of the Act and what it covers. The NRLA regulates all employers whose business affects commerce, regardless of whether the employees have a union or not. The Act generally provides protection from discipline to employees who discuss the terms and conditions of their employment with each other and who address those issues with management. Misunderstanding as to the NLRA’s applicability, or even resistance to the law due to what appears as overbroad regulation, can cause costly mistakes in disciplining or terminating an employee for protected actions. In many cases, the mistake begins with a rule that violates the Act on its face or through its application.
The first part of the memorandum provides specific examples of rules that are violative of the Act, rules that are not violative of the Act, and rules that might be violative, except for the context clues found in surrounding provisions. The second part of the memorandum is similar, but addresses the specific issues related to the NLRB’s enforcement action against the Wendy’s© fast food chain to address rules in the chain’s employee handbook and the negotiated revised language. Some examples provide clear guidance, some are confusing in the accompanying reasoning and some explanations strain credulity as to what an employee would reasonably construe as prohibiting protected activity.
The memorandum is a must-read for any employment practitioner, human relations director or anyone seeking to prepare a comprehensive, yet lawful, employee handbook. It is located at http://apps.nlrb.gov/link/document.aspx/09031d4581b37135. If nothing else, the memorandum provides the reader with ample information to understand the degree of liberality the NLRB employs in evaluating employee rules and the Act. However, it also appears to be a genuine effort by the NLRB to provide guidance to prevent violations. Regardless of the purpose, it is imperative to be aware of the information and evaluate any current rules or policies in light of the examples. This will hopefully prevent an employer from later being the recipient of an “I told you so” type of sanction by the NLRB.
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